14.08.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been preferred by the Complainant challenging the judgment and order No. 40 dated 27.8.2012 passed by the Ld. District Consumer Disputes Redressal Forum, Unit-I, Kolkata in Complaint Case No. CC/08/252, dismissing the Complaint on the ground of lack of territorial jurisdiction.

          Facts of the case, which are pertinent and relevant for adjudication of the instant case, are, in short, that the Complainant got his daughter admitted in Class XI in science stream for the session of 2007-08 in Ashok Hall Girls’ Residential School, P.O. Majkhali, District-Almora, Uttaranchal, on payment of requisite fees as evident from the Receipt Nos. 21264 dt. 7.6.2007 and 21276 dt. 14.6.2007  bearing the name and address of the said residential school of Almora, as available on records.

          In course of studying there the daughter of the Complainant suddenly fell ill at Almora and then the said school authority got the daughter of the Complainant admitted in a hospital at Almora for treatment.  Subsequently, being dissatisfied with the medical treatment arranged by the said school authority, the Complainant brought her daughter to Kolkata for treatment and got her admitted initially in Astha Nursing Home and then in Apollo Gleneagles Hospitals and finally in B.R.Singh Hospital, Kolkata, where the daughter of the Complainant recovered.  For such treatment in Kolkata the Complainant had to spend Rs. 2,92,500/- as stated in the Petition of Complaint.  In this factual background, the Ld. District Forum passed the judgment and order impugned dismissing the Petition of Complaint on the ground of lack of territorial jurisdiction.  Dissatisfied with such order the Complainant has approached this Commission by filing the instant Appeal.

          The Ld. Advocate for the Appellant/Complainant submits that the Ld. District Forum erred in dismissing the Complaint without correctly appreciating the facts of the case to the effect that the admission test and payment of fees for admission in the said school by Demand Draft drawn from a Bank in Kolkata, took place in Kolkata and that thus part of  cause of action  arose within the territorial jurisdiction of the Ld. District Forum concerned.

          The Ld. Advocate further submits that the plea of lack of territorial jurisdiction, which should have been mentioned in the very beginning of the hearing of the Complaint Case, was mentioned at the stage of evidence which was bad in law.

          The Ld. Advocate finally submits that as everything in respect of admission of the daughter of the Complainant took place in Kolkata, so the Ld. District Forum in Kolkata concerned has territorial jurisdiction to adjudicate the instant case and hence, the impugned judgment and order should be set aside and the Complaint be restored.

          In this connection, the Ld. Advocate refers to a decision of the Hon’ble National Commission in Melanie Das Vs. Royal Sundaram Alliance Insurance Company Ltd. & Anr., reported in I (2014) CPJ 302 (NC).

          On the other hand, the Ld. Advocate for the Respondents/OPs submits that the instant case predominantly relates to deficiency in service on the part of the School-Authority at Almora in arranging proper medical treatment of the ailing daughter of the Complainant by the School-Authority at Almora and the daughter of the Complainant first suffered from such ailment at Almora, Uttaranchal, where also the medical treatment of the patient concerned initially started and thus the root cause of action of the instant case of medical negligence first took place at Almora and hence, the Ld. District Forum in Kolkata has no territorial jurisdiction in respect of the instant matter.  In this connection, the Ld. Advocate has relied upon a decision of the Hon’ble National Commission in Raika Bandukwalla Vs. Dr. Anuradha & Ors, reported in III (2013) CPJ (NC), wherein it was decided that subsequent treatment in hospital in the states other than the state where the treatment first started, does not confer territorial jurisdiction upon the Fora of the latter states where subsequent treatment was given.  The Ld. Advocate refers to another decision of the Hon’ble National Commission in Dr. Mohd. Ayub Vs. Smt. Mehfuzun Nisa, reported in 2008 (4) CPR 363 (NC), where also the Hon’ble National Commission echoed the same view as mentioned just hereinbefore.

          The Ld. Advocate also submits that it is also well-settled that the law point, as is the question of territorial jurisdiction in the instant case, can be raised at any stage of proceeding.

          The Ld. Advocate further submits that the decision relied upon by the Ld. Advocate for the Appellant/Complainant, as referred to hereinbefore, is of no help to the Appellant/Complainant as the fact of the said case revolves round the claim of insurance and the fact of the present case is fully related to deficiency in arranging proper medical treatment at Almora.

          The Ld. Advocate concludes that as the material foundation factors of medical negligence, which is the key issue of the cause of action of the instant case, occurred at Almora, Uttaranchal, the Ld. District Forum in Kolkata concerned has no territorial jurisdiction and hence, the impugned judgment and order should be sustained, the same being lawful and proper.

          We have heard both the sides, considered their rival submissions and gone through the materials on records including the BNA filed by the Ld. Advocate for the Respondents/OPs.

          Materials on record evidently reveal that the key controversy in the case on hand revolves round the issue of alleged deficiency in service on the part of the said School-Authority in arranging proper medical treatment of the daughter of the Complainant by the School-Authority situated at Almorah, Uttaranchal.  It is further revealed that the medical negligence as alleged by the Appellant/Complainant first occurred at Almora. It is, therefore, established that the material fundamental factors of medical negligence, being the key cause of action, occurred at Almora, Uttaranchal.

          It is well-settled by the Hon’ble National Commission in the decision of Raika Bandukwalla Vs. Dr. Anuradha & Ors and Dr. Mohd. Ayub Vs. Smt. Mehfuzun Nisa (supra), both being related to medical negligence, as relied upon by the Ld. Advocate for the Respondents/OPs, that subsequent event of medical treatment does not confer territorial jurisdiction upon the Fora.  We also find substance in the submission of the Ld. Advocate for the Respondents/OPs that the question of  jurisdiction can be raised at any stage of the proceeding as held in a decision of the Hon’ble Supreme Court in Dr. Jagmittar Sain Bhagat Vs. Director, Health Services, Haryana, held in 2013 (3) CPR 514.

          Thus, we find that the substance of the submission of the Ld. Advocate for the Respondents/OPs weighs more than that by the Ld. Advocate for the Appellant/Complainant.

          The decision referred to by the Ld. Advocate for the Appellant/Complainant appears to be of no help to the Appellant/Complainant as the facts of the said case, being related to insurance claim,  are clearly distinguishable from the facts of the case on hand.

          Therefore, the above facts and decisions as cited by the Ld. Advocate for the Respondents/OPs lead us to hold that there is no illegality in the impugned judgment and order.

          Consequently, the Appeal is dismissed.  The impugned judgment and order is affirmed.  No order as to costs.