IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    29^th    Day of  September    2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Smt.S.Sandhya Rani, BSC, L.L.B,Member

       Sri.Stanly Harold, B.A.LLB, Member

                                                            IA No.87/2021

                                                          IN

                                                 CC.287/2019

1.  The Chairman-cum-Medical Director :         Petitioners/Opposite parties

KIMS Hospital, P.B.No.1

Anayara P.O, Thiruvananthapuram.

[By Adv.A.Thajudeen&Adv.Abdul Kharim]

2.   Executive Director

KIMS Hospital , P.B.No.1

Anayara P.O, Thiruvananthapuram.

        V/s

          Ramachandran Pillai                          :         Respondent/Complainant

          S/o Appukuttan Pillai

        Aradhana, Kadappa Muri

       Mynagapally Village

       Kunnathoor Taluk, Kollam.

      [By Adv.K.G.Jayakumar]

FINAL  ORDER

Smt.S.Sandhya Rani, BSC, L.L.B,Member

          The above IA has been filed  on behalf of the opposite party No.1&2  in CC.287/19 praying to consider  the jurisdiction and maintainability of the case as a preliminary issue.  In support of the petition the Director, Clinical Service, KIMS Health Care Management Limited has filed affidavit by  swearing as follows.

          The complaint has been filed stating wrong description of opposite parties.  But in obedience to the notice issued by this Forum/Commission  opposite parties have filed Vakalath and version.  However no part of the cause of action for the complaint arose within the territorial jurisdiction of this Forum/Commission.  The complaint is bad for non joinder of necessary parties.  The complainant has failed to implead the Doctor as an opposite party against whom the allegations of negligence was stated  in the complaint.  In the circumstances this  Forum/Commission has to consider the jurisdiction and maintainability of the complaint and dismiss the complaint as not maintainable.

 Though sufficient opportunity was granted,  the respondent/complainant has not filed any objection against this IA. 

Heard both sides and perused the records.

The allegations in the complaint on the basis of which the case has been registered is  medical negligence against the Orthopedic surgeon of the respondent hospital.  But the said Orthopedic Surgeon  is not made an opposite party in this case.  The two opposite  parties in the party array are Chairman cum  Medical Director and Executive Director, KIMS Hospital, Thiruvananthapuram.  They have no direct involvement in the treatment and the negligence alleged in this case.  The doctor who treated the complainant is a necessary and proper party who has to be included in the party array,  without the said necessary party the case cannot be decided on its merit.  Therefore it is clear that the complaint is bad for non joinder of necessary party.

          It is further to be pointed out that KIMS Hospital situated at Aanayara, Thiruvananthapuram even as per the averments in the complaint.  As per para 10 of the complaint cause of action for filing the complaint has arose on 29.09.2018  at respondent hospital at Thiruvananthapuram District.  The complaint has been filed on 03.12.2019 on which date the Consumer Protection Act 1986 was prevailing.  The new Act came into force only with the effect from 20.07.2020.  As per Section 11(2) of the Old CPA 1986 a complaint shall be  instituted in a District Forum within  the local limits of whose jurisdiction – (a) opposite party or each of the opposite parties at the time of institution of the complaint actually and voluntarily resides carries on business or as a branch office or personal works for gain or cause of action wholly or in part arises.  Here in this case admittedly the cause of action arose at Thiruvananthapuram even as per the averments in the complaint.  None  of the opposite parties have been residing or works for gain or carries on any business within the jurisdiction of this Forum/Commission.  In the circumstances this Forum/Commission lacks territorial jurisdiction to entertain the complaint.  In the result  we find merit in the IA and the same is only to be allowed.

 In the result IA stands allowed by finding that the complaint is bad for non joinder of necessary parties and this Forum/Commission is not having territorial jurisdiction to entertain the complaint.  Therefore the complaint is returned with a direction to file before the proper Forum by impleading necessary and proper party. 

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the   29^th   day of  September  2022.

S.Sandhya Rani:Sd/-

E.M.Muhammed Ibrahim:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent