Consumer Complaint No: 219/2006

Date of presentation: 19.07.2006

Date of decision: 06.01.2010
Brig A.C. Prem (Retd.)

MIG Block No.2, Flat A-4,

Housing Board Colony, Jakhoo,

Shimla-171002.

… Complainant.
Versus

Fortis Hospital,

Through its Managing Director-cum-Chairman,

Sector 62, Phase-VIII, Mohali-160 062.
…Opposite Party.

For the complainant: Mr. Sunil Mohan Goel, Advocate.

For the Opposite Party: Mr. Vijay Arora, Advocate.
O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he, was diagnosed on, 29.11.2005, as a case of Hernia of the right side, which had reoccurred, hence, since the complainant preferred a laparoscopic operation done, so as to reduce the period of hospitalization to a day or two, and as Military Hospital Jutogh did not have the expertise for laparoscopic surgery, therefore, he was referred to ECHS Chandigarh. The complainant further proceeded to aver that, on, 07.12.2005, he visited the hospital of the OP, and took medical advise from Dr. N.C. Raina and was operated, but the OP, did not give due care and caution while conducting the operation, as prior to operation, the OP should have informed him that there is a 30% chance of a vein or artery being cut in the surgery which would then necessitate open surgery to suture the two ends of the vein/artery and a prolonged hospitalization and in case this fact would have been brought to his notice, he would have definitely avoided the operation. The complainant further alleged that the act of the OP, in not properly treating him, was not expected from a reputed hospital. Hence, it is averred that, there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as this Forum lacks the territorial jurisdiction. On merits, it is contended that, the complainant, is, chronic case of Hernia re-occurrence as all his three previous surgeries for inguinal hernia repair had failed, hence, he approached the OP for diagnoses. The complainant was a smoker and had recurrent problem of hernia. It is contended that the complainant gave his consent in writing to this high risk surgery and signed the undertaking after going through the same. It is denied that any negligence has been committed while performing the operation upon the complainant. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. At the very out, it is incumbent upon us to adjudicate the contention of the OP, that, this Forum lacks the territorial jurisdiction to entertain and try the present complaint. We have also perused section 11 of the Act, which envisages, that, the District Forum shall have jurisdiction to entertain complaint, only when a part of cause of action accrue within the local limits of its jurisdiction, or where the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily reside or carry on business or have a branch office or personally works for gain, within the local limits of the jurisdiction of a Forum. Undisputedly, in the instant case neither the OP, is carrying on business within the local limits of this Forum nor has a branch office or personally works for gain within the local limits of the jurisdiction of this Forum. Nor when a part of cause of action has been proved to have accrued within the territorial limits of the jurisdiction of this Forum. Hence, we, conclude, that, for want of proof of the above, requirements by the complainant, so as to bestow jurisdiction upon this Forum, the instant complaint having been filed before this Forum, cannot be adjudicated by us, for lack of territorial jurisdiction. Thereofre, it is deemed fit in the interest of justice and fair play to return the complaint to the complainant for its presentation in the Forum, having the jurisdiction over the matter, if, so chooses. Ordered accordingly. No order as to the costs.

6. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.