Orissa

Rayagada

CC/15/5

Sri Raghunath Dash, S/o: Late Banamli Dash, - Complainant(s)

Versus

The Commandant, Command Hospital, Harayana and others - Opp.Party(s)

Self

03 Sep 2022

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    COMMISSION, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 05/ 2015.                                 Date.   3. 9 . 2022.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra                            President

Sri Satish Kumar Panigrahi,                                Member

 

Sri Raghunath Dash, S/O: Late Banamali  Dash, At: Srinivas Nagar, Po  :Gunupur,   Dist.Rayagada,State:  Odisha.                                                            …….Complainant

Vrs.

1.The Commandant, Command  Hospital(WC), Chandimandir, Haryana.  Pin  No. 900 475

2.Pranaya  Mohan  Panaigrahi, S/O: Sarado Chandra  Panigrahi,  At: Friends Colony, Po:Parlakemundi, Dist: Gajapati.                                            .…..Opp.Parties

 

Counsel for the parties:                         

For the complainant: - Sri D.B.M.Pattnaik, and associates,Gunupur

For the O.PNo.1  :- Sri Y.MadhuSudhan Rao, A.G.P, Rayagada.

For the  No.2:- Sri V.S.Raju and associates,Rayagada.

                                       

J u d g e m e n t.

       

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non payment of compensation  towards  medical negligence due to death of  complainants  daughter  at the time of  delivery   for which  the complainant  sought for redressal of the grievances raised by the complainant. The brief facts of the case are summarized here under.

That the  complainant humbly submits that after two years of marriage of his daughter Geetanjali,  with  O.P. No.2   who was an employee  under Command Hospital, Haryana  she became pregnant at Chandigarh.   During the period of pregnancy of his  daughter Geetanjali, the O.P.  No.2 was neglecting   her and the O.P. No.2 was not taking  proper care by  providing  proper medical  treatment and food  at Chandigarh.    In the seventh  month of pregenancy  of Geetanjali  she got  delivered   to a premature female  baby at command Hospital, Haryana i.e. in the Hospital  of  the O.P.No.1 by major operation.  In the mean while the O.P. No.2 had informed  the said matter to the complainant. The complainant  submits that due to negligence of the  O.Ps the daughter of the complainant Geetanjali died on 20.4.2014. The complainant submits that there is deficiency in service  by the O.Ps and the complainant sustained huge loss and damages of Rs. 18,00,000/-.  Therefore the  complainant prays the  forum direct the  O.Ps to pay the claim amount a sum of Rs.18,00,000/- with interest and also cost and compensation and such other relief as the court deems fit and proper for the best interest of justice.

 

          On  being  noticed the O.P. No.1 appeared through their learned counsel and submitted that the avements made in the petition are false, frivolous and vexatious. The O.P. No.1  denies each and every allegation and put the complainant   for strict proof of the same. The O.P.No.1  further  contended   that the  complainant is not a consumer and the  subject  matter of the dispute does not come under the provisions of the C.P. Act, 1986. From the face of the complaint petition it reveals that, the alleged occurrence took place at Chadi  Mandir, Haryana   as such this hon’ble forum do not  have territorial jurisdiction  to  entertain the complaint  as such this case is bad before the hon’ble forum  for lack of territorial jurisdiction   and is liable to be dismissed.  Further The  A.G.P. avered in his counter  that this O.P. is no way  related with   this case  and he has been wrongly  added  as a party  in this case.  Hence he prays to drop this case  for the best interest of justice.

On being noticed  the O.P. No.2 appeared  through their learned counsel and  took adjournment but not filed their  written version inspite of several  opportunities has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 7 (Seven) years   for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  from the complainant set the case  exparte against the O.P No.2. The action of the O.P No.2   are against the principles of  natural justice as envisaged  in C.P. Act. Hence the O.P No.2    wessetexparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

          We therefore constrained to  proceed to dispose of the case, on its merit  against the O.P  No.2.   The counsel for the   O.P. No.2 has filed nothing  except the authorization. The  complainant has filed some documents.  The learned counsel for the O.P.No. 1 filed his counter  along with  the supportive  documents  in favour of  his case.

          Heard  arguments from the learned counsel for the   complainant  and from the learned counsel for the  O.P. No.1..   We perused the complaint petition and the document sfiled by   both  the   parties.

This District Commission   examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

        FINDINGS.

The main  grievance of the complainant is that direct the O.Ps to pay  compensation   a  sum of Rs.18,00,000/- towards  medical negligence due to death of  complainants  daughter  at the time of  delivery .

The O.P. No.1 in their written version contended that the  complainant is not a consumer  and the subject  matter of the dispute does not come under the provisions  of C.P. Act as such the forum should have not entertained  the petition and should have rejected  the petition  on the sole grounds of lack of jurisdiction.

The issues tobe decided  in the dispute are:-

1. Whether the complainant  is a consumer  in this case under C.P. Act.?
2. Whether this forum  has   territorial jurisdiction to entertain the complaint under the C.P. Act, 1986  ?
3. Whether there is any  deficiency in service on the part of the O.Ps?
4. If so the nature and quantum of relief to be awarded  to the complainant?
5. Whether the complaint is not barred by limitation.

 

 

While  addressing  Issue No. 1.

At this stage, it is appropriate  to quote Section  2(1)(d) of C.P. Act,  which reads as follows:-

            “(d)”Consumer” means any person who-

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any  system of deferred payment   and includes any user of such goods other than the person who buys   such goods for consideration paid or promised or partly paid or partly  promised , or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly  promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails  of the services for consideration paid or promised, or partly paid and  partly promised, or under any system of deferred payment, when such services are availed  of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.

 

Admittedly, in the case at hand, the complainant had not availed any service nor purchased any services from the O.P. for any consideration, as such, he cannot be a ‘consumer’ under them. Only because the Consumer Protection Act is a social benefit oriented Act, it cannot besaid that any body who files a case before the District Forum,as the case may be he can bea ‘consumer’.

 

Jurisdiction –conferment of jurisdiction is a legislative function it can neither be conferred with  consent  of parties  nor by a superior court, if court passes a decree having  no jurisdiction over  the matter it would amounts  to nullity as matter goes  to root  of the cause.  Such an issue can be raised  at any stage  of proceedings.  Finding   of  court or tribunal  becames irrelevant or un enforceable/ in executable once forum is  found to have  no jurisdiction if  court  inherently lacks jurisdiction   scence of party  equally should not  be permitted  to perpetuate and  per petrate   defeating  lelgislative animation.  Court  can not derive   jurisdiction   apart from statute- In such eventually doctrine of waiver  also does  not apply.  Dr.  Jagmitar  Bhagat  Vrs  Director, Health Services,Hariyana (SC).    

Issue No. 2.

While answering  the  issue  No. 2  we would like to refer the citation.  It is held and reported  in CPJ-2010(1) page No. 136   where in the  Hon’ble  State commission, New Delhi  observed  “Forum should decide the dispute of jurisdiction  first, application kept open to be decided later”.

Further it is held and reported in C.P.R 2011(4) P- 482 the hon’ble National Commission where in observed “ Consumer forum can not adjudicate disputes without addressing the basic  issues”.

Section 11(2)©  of the C.P. Act, 1986 has made  it specific that a complaint shall be instituted in a District Forum with in the local limits of whose jurisdiction  the cause of action, wholly or in part, arises. The present case in hand it is  revealed that  the  complainant’s daughterwas made  cisarean operation  and got delivered to a premature female baby at Command Hospital, Hariyana  which is comes under the purview  of the territorial jurisdiction  of the Dist. Consumer Forum, at Chandigarh, State: Hariyana.  For redressal  of   grievance the complainant should file  the above case  before the Chandigarh  District Consumer Forum where the cause of action arose  and he can agitate his grievance for its redressal .    In  view of the above discussion   and according to  the above citations this forum  dismissed the complaint petition. We  do not  think  proper to go  into merit of this case.  The complainant have no fate other then dismiss.

On perusal of the  complaint petition this  Commission  observed  that the matters relating to  non  receipt of compensation  from the O.Ps in lieu  of  death of  daughter of the complainant  during  delivery   at the O.P No.1’s Hospital   will not come under the purview of the C.P. Act,  Where there is a special remedy is available to the parties under the special  Act. The complainants grievance be redressed   having  jurisdiction where the  complaint  may agitate the claim  by approaching Civil Court provided by the legislature.  Hence   this commission  did not inclined to wrongly  invoke its jurisdiction to adjudicate the matter(Supra). For medical negligence  &  non payment of compensation therefore does not constitute consumer dispute. Hence  this commission  has lack of jurisdiction to entertain the  above dispute  and adjudicate  the same under the provisions  of the C.P. Act.  The C.P. Act does not provide for application of evidence Act or CPC. A consumer  dispute is to be  decided on the yard stick of reasonable probabilities  on the basis of facts brought  on record  by the parties  (GeetaJethaniVrs. Air Port authority of India and others 2009  CJT  1048 (N.C). The case is not maintainable in view of the above discussion.   More over these complicated  issues involved in this case could not be  easily   determined .   Summerisidly   with out examination and cross examination which  dragged  different provisions of   different   provisions  of different  laws and Acts. The allegations  could  have  to be  proved  by the  complainant  by    evidence.

So  to meet the  ends of justice    the following order is passed.

In view of the order passed by the  Hon’ble National Commission   the complaint filed in the present case before the forum is not comes squarly with in the  defination  of consumer with in the meaning of  section 2(i)(d)(ii)  has lost merit  at this stage to  adjudication   to get compensation is not maintainable under the C.P. Act, 1986.  As the case  is  not maintainable before the forum we do not  go into the  merit  of the case and do  not discussed other  issues.  Accordingly, without  going into the merits of the case, as the complaint  does not fall  within the purview  of  C.P. Act, 1986. The Forum have no jurisdiction  to deal with the complaint. For the reasons stated  herein  above we  are not inclined to allow  the complaint.  This forum dismissed  the above complaint petition  with an order  as to no costs.  More over the   complainant  is at  liberty to seek appropriate remedy available to him before the appropriate court  of competent having  jurisdiction.

To meet the ends of justice  the following order is passed.

ORDER.

Consequently  the  complaint  is dismissed,  with a direction that  the complainant to take back the documents filed in this case  if required by an application forth with,  with  a  permission to file a fresh Complaint/plaint/petition before the appropriate forum or courts of law having jurisdiction, and on such event, the period spent in this forum agitating the dispute i.e. the period from filing of this complaint to the date of disposal shall be excluded from counting of limitation.

Parties are left  to bear  their  own cost.

Copies of the order be served on the parties  concerned as per rule.

Dictated and  corrected by me.

Pronounced on this      3rd.day  of   September,     2022.

 

                             MEMBER.                              PRESIDENT.