KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 657/2010

JUDGMENT DATED:29-06-2011

PRESENT:

SHRI. M.V. VISWANATHAN                                      : JUDICIAL MEMBER

SHRI.M.K. ABDULLA SONA                                      : MEMBER

C.H.Kunhiraman, S/o Krishnan Vydiar,

Residing at “Sreemandir”, P.O.Meppayil,                  : APPELLANT

Vadakara, Kozhikode District.

(By Adv:Sri.E.V.Viswambharan)

          Vs.

1.      The General Manager,

Southern Railway, Park Town,

Chennai – 600 003.

                                                                   : RESPONDENTS

2.      The Chief Medical Director,

Southern Railway, M.M.C. 4^th floor,

Chennai 600 003.

(By Adv:Sri.S.Renganathan)

JUDGMENT

SHRI. M.V. VISWANATHAN          : JUDICIAL MEMBER

Appellant is the complainant and respondents are the opposite parties in CC.115/08 on the file of CDRF, Kozhikkode.  The complaint therein was filed alleging deficiency of service on the part of the opposite party/Southern Railway in not granting the medical reimbursement facility claimed by the complainant.  The opposite parties entered appearance and filed written version denying the alleged deficiency of service.  They contended that the complaint itself is not maintainable as the complainant is not a consumer coming within the ambit of the consumer Protection Act, 1986.  Thus, the opposite parties prayed for dismissal of the complaint.

2.      Before the Forum below, the complainant was examined as PW1 and a witness on his side was examined as PW2, the doctor who treated the complainant’s wife.  Exts.A1 to A7 documents were also marked on the side of the complainant.  From the side of the opposite party/Railway B1 letter dated:31/1/2007 was marked.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated:20^th October 2010 dismissing the complaint on the ground that the complainant is not entitled to get the amount reimbursed as the treatment was not an emergent one and the treatment was undergone in the Private Hospital.  Hence the present appeal by the complainant therein.

3.      We heard both sides.  Learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that the treatment was an emergent one and so the complainant approached the Private hospital for the emergent treatment of his wife.  He also relied on the testimony of PW2 and submitted that the Forum below failed to appreciate the evidence on record especially, the evidence of PW2 doctor who treated the complainant’s wife.  On the other hand, the learned counsel for the respondents/opposite parties submitted that the appellant/complainant is not a consumer and the complaint in CC.115/08 was not maintainable before the Forum below.  It is further submitted that the Forum below did not consider the contention of the opposite parties that the complainant is not a consumer.  Thus, the respondent prayed for dismissal of the present appeal.

4.      A perusal of the written version filed by the respondents/opposite parties before the Forum below would make it clear that the opposite parties took the contention that the appellant/complainant is not a consumer coming within the ambit of the Consumer Protection Act and so the complaint in CC.115/08 is not maintainable under the provisions of the Consumer Protection Act, 1986.  Unfortunately, the Forum below (CDRF, Kozhikkode) failed to consider the aforesaid contention adopted by the opposite parties.  The Forum below failed to consider the important issue as to whether the complaint in CC.115/08 is maintainable under the provisions of the Consumer Protection Act and as to whether the complainant is a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. So, this is a fit case to be remitted back to the Forum below to consider the issue regarding the maintainability of the complaint in CC.115/08.

5.      Appellant/complainant has got a case that the Forum below failed to appreciate the evidence on record in its correct perspective.  It is further submitted that the Forum below totally ignored the evidence of PW2, the doctor who treated the complainant’s wife in the Private hospital.  It is to be noted that the complainant claimed the treatment expenses for the aforesaid treatment which was undergone by the complainant’s wife in a private hospital.  The Forum below dismissed the complaint on the ground that the there was no emergency for getting treatment in a private hospital.  But the evidence of PW2 would give an indication that the treatment was emergent to save the life of the complainant’s wife.  Unfortunately, the Forum below failed to consider the evidence of PW2, the doctor who treated the complainant’s wife in the private hospital.  This is a fit case to be remitted back to the Forum below to consider the evidence available on record especially, that of PW2.

In the result the appeal is allowed to the extent that the matter is remanded to the Forum below for fresh consideration and disposal of the same on merits.  The impugned order dated:26^th October 2010 passed by CDRF, Kozhikkode in CC.115/08 is set aside and the Forum below is directed to answer all the issues involved in the matter by considering the entire evidence on record.  The Forum is directed to dispose of this matter within 6 months from the date of receipt of the records in this case.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs and to appear before the Forum below on 11.08.2011.

M.V. VISWANATHAN  : JUDICIAL MEMBER

M.K. ABDULLA SONA: MEMBER

VL.