This complaint is filed by the Complainant under Section 12 of the Consumer Protection Act, 1986, alleging medical negligence against the OPs.
In the prayer portion the Complainant has sought for relief to the extent to refund Rs.32,350/- paid by the Complainant towards the treatment cost to the OP-2, compensation to the tune of Rs.2,00,000/-, compensation for medical negligence of Rs.1,00,000/- and interest component on the said amount.
Initially the complaint was filed before the Ld. District Forum, Barasat (Commission, as amended w.e.f. 20.07.2020). After establishment of this Ld. Commission, Rajarhat (New Town), this record has been transferred to this Ld. Commission in view of the order passed by the Hon’ble SCDRC.
This complaint was transferred after adducing evidence by the Complainant. Upon receipt of this record, the Complainant was directed for production of the original documents as sought for by the Ld. Counsel for the OPs. The Ld. Counsel for the OPs had inspected the said documents. The OPs have filed questionnaire and the Complainant has accordingly filed reply to the said questionnaire. Thereafter scope was given to the OPs for adducing evidence. After adducing evidence, the Complainant filed questionnaire and the OPs have filed reply to the said questionnaire. Be it mentioned that by filing a petition by the OP-1, prayer was made for adoption of the written version of the OP-1 as his evidence. The said petition was allowed. After completion of the evidence by the both parties date was given for argument along with filing BNA. Date of argument was fixed on 19.07.2021.
Due to severe spur of Covid-19 (2nd Wave) this record could not be placed on the stipulated dates and accordingly it was placed before the Ld. Bench on 26.07.2021. On 26.07.2021 none was present on behalf of the Complainant; on behalf of the OP-1 the Ld. Counsel was present. It was submitted by the Ld. Counsel for the OP-1 that she was entrusted with this complaint as an Advocate on behalf of the OP-2. It was also submitted by the said Ld. Advocate that the OP-2 Dr. Sushanta Roy, being the husband of the Ld. Advocate for the OP-1 has expired on 31.05.2021 and she being the widow of the OP-2 has filed cremation certificate of Dr. Sushanta Roy. It was further submitted by the said Ld. Counsel that due to Lockdown on account of Covid-19 Dr. Roy’s family is still awaiting for the death certificate and as and when the family will collect the death certificate from the appropriate authority, the same will be submitted by the widow and the Ld. Counsel for the OP-1 before this Ld. Commission. It was also submitted by the Ld. Advocate, Mrs. Mousumi Roy that no allegation has been made out in the petition of complaint by the Complainant against the OP-1, no relief has been sought for against the OP-1 in the prayer portion of the complainant. In the interest of Natural Justice further date was given on 12.08.2021 for presence of the both parties and hearing on the said matter. On 12.08.2021 the Ld. Advocate for the Complainant has stated that admittedly the OP-2 has expired during pendency of this complaint and now the OP-1 is only the contesting OP in the instant complaint. The Complainant had sought time for filing questionnaire. On 22.11.2021 the Ld. Counsel for the OP-1 has filed the copy of the death certificate of the OP-2 and prayed time for filing an application seeking dismissal of the complaint. On 17.12.2021, the OP-1 has filed an application praying for dismissal of the complaint with a copy to the other side, which was registered as MA-/87/2021. Time was given to the Complainant for filing written objection in respect of the said MA. On 14.01.2022 both parties were present. On that date written objection was filed by the Complainant in respect of the MA-87/2021, filed by the OP-1. On the said date the Complainant took time for filing an application with a view to pass an appropriate order in this respect. Date was given to the parties on 20.01.2022. On that date though the Ld. Counsel for the OP-1 was present, but none was present on behalf of the Complainant.
We have carefully perused the petition of complaint along with the related documents filed by the Complainant, from where it is evident that the entire allegation has been made out by the Complainant against the OP-2-Dr. Sushanta Roy, since deceased. The OP-11 is the Hospital and admittedly Dr. Sushanta Roy, since deceased was attached with the said Hospital. It transpires from the petition of complaint that no treatment was given by Dr. Sushanta Roy-OP-2 at the OP-1, rather the OP-2 provided medical treatment to the Complainant at his Dental Clinic situated at CB- 45, Sector-I, Salt Lake, P.S- Bidhannagar (N).
Be it mentioned that the Hospital is situated at 241, B.B. Ganguli Street, P.S- Bowbazar, Kolkata- 700012. The Complainant has sought for refund of Rs.32,350/- which was paid by him only to the OP-2 for his medical treatment and as the Complainant has alleged medical negligence against the OP-2, hence the Complainant has sought for compensation for Rs.2,00,000/- and compensation for medical negligence of Rs.1,00,000/-. The Complainant has also sought for interest as admissible. Within the four corners of the petition of complaint and the documents as filed by the Complainant, there is no scrap of papers from where it is evident that treatment was given by the OP-2 at the OP-1 and single farthing was paid by the Complainant to the OP-1. Only in the letter head of the OP-2 the address of the OP-1 is printed. Entire treatment was given by the OP-2 to the Complainant at the personal Chamber of the OP-2.
It is mentioned earlier that during pendency of this complaint and before completion of hearing argument as well as passing Judgment, the treating surgeon- OP-2 has expired on 31.05.2021.
In this respect we are mentioning a Judgment passed by the Hon’ble NCDRC in the case of Balbir Sing Makol vs. Chairman, Sir Ganga Ram Hospital, dated 15.12.2000, wherein it has been held relying upon the Judgment passed by the Hon’ble Supreme Court in the case of G. Jayaprakash vs. The State of Andhra Pradesh reported in AIR 1977 A.P. 20(22) wherein the Hon’ble Supreme Court held as under:
‘the death of the Doctor extinguished his liability for damages and the suit against him stood abated. The maxim, “actio personalis meritur cum persona” applied to the case.’
In the para 12 of the said Judgment it is mentioned as followes:
‘12. To the same effect is the ruling from a Division Bench of Madras High Court in RM.P. KP. AR. Arunachamlam Chettiar vs. V.S. @ S.V.V. Subramanian Chettiar (died) and Anr, reported in AIR 1958 Madras 142 and Baboolal Nanhela vs. Ramlal Nandram reported in AIR 1952 Nagpur 408.
13. The Hon’ble Supreme Court while considering the question of bringing on record the legal representatives of the deceased who was sued for damages in a tort of defamation was considered and answered likewise in the case of Melepurath Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair, reported in AIR 1986 SC 411. That was the case where the suit for defamation had been dismissed and the plaintiff had filed an appeal. During the pendency of the appeal, Defendant who was being sued for defamation had died. The Supreme Court held that his legal representatives could not be brought on record as the cause of action stood extinguished.’
In view of the abovementioned Judgment passed by the Hon’ble Supreme Court as well as the Hon’ble NCDRC and having regard to the Law of this Land we are of the view that in the case in hand as the treating doctor has expired during pendency of this complaint against whom allegation of medical negligence has been brought by the Complainant, the instant complaint against the OP-2 stood abated.
Now we are to say regarding OP-1. No allegation has been made out within the four corners of the complaint against the OP-1. No relief has been sought for from the OP-1 and no payment has been made to the OP-1 for medical treatment by the Complainant, rather entire consideration was given to the OP-2 for his medical treatment. As per settled Law, we cannot go beyond the pleadings and the prayer portion of the complaint. Due to want of any allegation either direct or indirect against OP-1, we are not inclined to allow this complaint against OP-1.
Hence it is ordered that the Consumer Complaint being number- RBT/CC/136/2019 is hereby dismissed on contest against the OP-1 and abated against the OP-2 without any cost.
Accordingly the MA being no-87/2021 is hereby allowed on contest without any cost.
Let plaint copy be given to the parties, free of cost, as per CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
