KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
TRANSFER APPLICATION No. 07/2022
ORDER DATED: 03.08.2023
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
PETITIONERS/OPPOSITE PARTIES:
- Mitera Hospital Pvt. Ltd., Thellakom P.O., Kottayam -686 630 represented by its Managing Director Dr. M. Jaipal Johnson.
- Dr. M. Jaipal Johnson, Gynaecologist, Mitera Hospital Pvt. Ltd., Thellakom P.O., Kottayam -686 630.
- Dr. Banisha K.P., Gynaecologist, Mitera Hospital Pvt. Ltd., Thellakom P.O., Kottayam -686 630.
- Dr. Prabha Jaipal, Anaesthetist, Mitera Hospital Pvt. Ltd., Thellakom P.O., Kottayam -686 630.
(By Advs. P.T. Mohan Kumar &Mahesh N.G.)
Vs.
RESPONDENTS/COMPLAINANTS:
- T.N. Rajesh, S/o Narayanan Nair, Thachanattil House, Peroor P.O., Kottayam-686 637.
- Sreelakshmi R. Nair, Thachanattil House, Peroor P.O., Kottayam-686 637.
- Ishani R. Nair, Thachanattil House, Peroor P.O., Kottayam-686 637.
(By Adv. Bobby John K.A.)
ORDER
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
This is a petition filed by the opposite parties in C.C. No 83/2022 on the file of the District Consumer Disputes Redressal Commission, Kottayam (referred to as District Commission as short) seeking a transfer of the complaint by resorting to Section 48 of the Consumer Protection Act, 2019.
2. The allegations in the petition, in short, are as below:
The complaint was filed attributing medical negligence against the opposite parties consequent to the death of the wife of the 1st complainant and the mother of the other two minor complainants. The wife of the first complainant who was treated in the hospital for her delivery had succumbed to death. The complainants alleged medical negligence whereas the opposite parties would set up a case that the death occurred due to a complication known as “Amniotic Fluid Embolism/DIC”.
3. The 1st complainant is a practising lawyer at Kottayam. The Bar Association, Kottayam had taken a decision that nobody from Kottayam Bar Association shall appear for the petitioners and hence they had engaged a lawyer from Ernakulam Bar for conducting the case. The Chairman and the Woman Member of the District Commission were practising at Kottayam as the members of the Kottayam Bar Association. In view of this circumstance the petitioners apprehend that the trial of the case is likely to be biased. So, the petitioners would seek for transfer of the case to any other District which is chaired by a retired District Judge.
4. The prayer is opposed by the complainants on the reason that the petitioners have no valid grounds for getting an order of transfer. They filed objections opposing the petition as under:
They denied the allegation that the Kottayam Bar Association had taken a decision that no member of the bar shall appear for the petitioners. The petitioners had engaged a lawyer from the panel of lawyers maintained by the Indian Medical Association. The District level Committee had referred the matter to the State Apex Body and where it was unanimously found that there was medical negligence and it is incorrect to state that the District Committee had reached a conclusion that there was no medical negligence.
5. Heard both sides. The copies of all the relevant records were filed, so the records from the District Commission were not called for.
6. Section 48 of the Consumer Protection Act contemplates that any complaint may be ordered if the interest of justice so requires. The petitioner apprehends bias on the reason that the Complainant, Chairman and the woman member of the District Commission are members of the Kottayam Bar Association. No instance of any bias in the proceedings of the District Commission has been raised in the petition. When seeking an order of transfer the burden is upon the petitioner to establish evidence for an act of bias against the District Commission. The petitioner cannot insist that a particular case has to be dealt with by a District Commission chaired by a retired District Judge.
7. The learned counsel for the petitioner had placed a ruling of the Bombay High Court in “Dr. Jayesh Arjun Kataria Vs State of Maharashtra” reported in SCC Online 161. The facts of the case cited are not found as applicable to this petition. In the case cited an interim order was passed by the High Court to adjourn the trial till the disposal of the transfer petition, but disregarding the interim order the petitioner was asked to file petitions seeking adjournment and charged costs for the adjournment. Hence the High Court was inclined to take a view that the apprehension of bias alleged by the petitioner was genuine. Accordingly, the matter was transferred. Here the petitioner never alleged any act of bias in the proceedings so far done by the District Commission.
8. In this connection the learned counsel for the respondent had cited the following precedents and argued that while ordering a transfer the State Commission should reach at a conclusion that in the interest of justice the transfer is inevitable. Apprehension of bias on a bald allegation that a trial judge and a party to the lis had been in close association at some point of time cannot be accepted as a ground for ordering a transfer. The counsel for the petitioner had cited 2020 KHC 6563 in “Neethu Yadav V Sachin Yadav”,2021 KHC 6277 in “Rajkumar Sabu V Sabu Trade Private Ltd”,2010 KHC 4900 in “Nahar Singh Yadav and another V Union of India and others”,2021 (5)KHC 314 in “Beailah Grace Albert and another V Rose Jose and others”. From the precedents cited by the petitioner the State Commission must be convinced that in the interest of justice the transfer is required. The reason stated by the petitioner is not a valid ground so as to order transfer of the matter. The petitioner was not able to convince us that any valid grounds exist to reach a conclusion that in the interest of justice transfer of the case is inevitable. Therefore, the petition is liable to be dismissed.
In the result, the petition is dismissed.
AJITH KUMAR D. : JUDICIAL MEMBER
jb BEENA KUMARY. A : MEMBER
