KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO.71/13

JUDGMENT DATED 14.2.13

(Appeal filed against the order    in CC No.117/10 on the file of CDRF,   Pathanamthitta dated 20.11.2012)

PRESENT

JUSTICE SHRI.P.Q.BARKATH ALI                 --  PRESIDENT

SHRI.M.K.ABDULLA SONA                              --  MEMBER

 1.     Girija.K.S.,

          Aged 46 years. W/o late R.Sreeraj,

          Sravana, Iymail,

          Omallur, Pahanamthitta.

2.      Arun Sreeraj (Minor)

          13 years, S/o. late R. Sreeraj,

           Sravana, Iymail,

          Omallur, Pahanamthitta

3.      Archa  Sreeraj (Minor)

          4 years D/o. late R. Sreeraj

          Sravana, Iymail,

          Omallur, Pahanamthitta

4.      P. Ramakrishnan,                                      --  APPELLANTS

          72 years S/o. Padmanabhan,

Kallummootil House, Klappana.P.O.

          Kulasekharapuram.

5.      Nalini

          68 years AW/o. P. Ramakrishnan,

          Kallummootil House, Klappana.P.O.

          Kulasekharapuram.                                           

 (By Adv.Shri.S. Ajith Prabhav & Others)

                             Vs.

1.      Thiruvalla Medical Mission Hospital

          Dewan Behadur Dr. V.Varghese Hospotal

          Trust Association, Thiruvalla-689101,

          R/p by its Managing Trustee

2.      Dr. Mahanthesh Kumbhar,

          S/o. Mallappa Kumbhar,

Sector No.5, Plot No.8 Near Kalidasa School

Navanagar, Bagalkot, Kernataka-587103.

3.      United Insurance Co. Ltd.,

          Branch Office, Thottuparampil Building,

          Post Office Junction,

          Changanacherry. Pin-68610                    --       RESPONDENTS

JUDGMENT

SHRI.M.K.ABDULLA SONA --  MEMBER

          The appellants are the complainants who prefers this appeal under the direction of the forum below that the complaint is allowed not on the basis of the prayer of the complainant.  The order passed by the forum below is similar in Appeal No.15/13 which filed by the first opposite party hospital.  The forum below directed the first opposite party to return the treatment   expenses of Rs.1,20,000/- along with compensation of Rs.3 lakhs and cost of Rs.5,000/- to the complainant within 30 days from the date of receipt of copy of this order, failing which the complainants are allowed to realize the same from the first opposite party along with interest @ 10% per annum till the realization of the order.

          2. This appellant/complainants are legal heirs of the deceased R.Sreeraj who filed the complaint with a prior to a compensation, cost and return of the expense spend by them.  This appellant/complainant filed the complaint with a prayer to get a claim of Rs.20 lakhs as compensation with interest and cost.  Hence this appeal for the enhancement of the amount ordered by the forum below in the result portion of the order.

          3. The very same order, the first appellant hospital preferred this Appeal No.15/13 on 1.2.2013 before this Commission.  The main grievance of the first opposite party hospital is that the forum below fixed the entire liability against the first opposite party hospital alone which is illegal and irregular as per the law.  The forum below found that opposite party/doctors are negligent and carelessness in the treatment and which caused death to the complaint.  As per the order passed by the forum below, it is found that the 4^th opposite party/doctor is negligent and carelessness in the treatment of the deceased Sreeraj and which caused death to  deceased Sreeraj.  It cannot be understand that the forum below did not fix any liability against the doctors concerned.  The Forum below pick and choose the first opposite party hospital alone for the entire  liability of the payment  even though the very same found that the 4^th opposite party doctor who was negligent and carelessness in the course of the treatment of the deceased Sreeraj.  It is not legally sustainable.  But in this appeal, the complainant prays to enhance the amount ordered by the forum below.  They prays for a compensation of Rs.20 lakhs and interest.  But the forum below only found that the first opposite party is direct to return the treatment expenses of Rs.1,20,000/- along with the compensation of Rs.3 lakhs and cost of Rs.5,000/- to the complainant within 30 days from the date of the receipt of the copy of the order, failing which the complainants are allowed to realize the same from the first opposite party along with interest at the rate of 10% per annum till the realization of the order.

          In the result, this appeal is allowed in part and set aside the result portion of the impugned order passed by the forum below.  The other finding of the order of the Forum below is confirmed.  The case remanded back to the forum below for fresh disposal,  after considering the strict principles of law of tort and the forum below also direct to consider the claim of Rs.20 lakhs with interest as prayed by the complainant in the complaint  on the basis of the fact, circumstances and evidence adduced by the complainant before the forum below.  The forum below is also direct to pass an order consider with the grievances of the appellants/complainant on  merit.  All the parties are directed to appear before the forum below on 26.3.13.  This appeal is disposed of accordingly.

 M.K.ABDULLA SONA --  MEMBER

                                      JUSTICE  P.Q.BARKATH ALI--  PRESIDENT

SL