SMT. SAHANA AHMED BASU, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The factual matrix of the case is that the Complainant Umran Begum’s husband Md. Mustafa admitted to the SSKM hospital, OP, for surgery and treatment of Hernia accompanied by his wife and daughters. He was shifted to Curzon Ward at BedNo. 44 on 11.04.2005. They paid Rs. 1120/- as per direction of the hospital authority and a visiting card was issued. On 12.04.2005 when the complainant along with her daughter went to said hospital to visit the patient,they did not find him on his bed. Upon enquiry they understood that the said person was missing since 7.00 A.M. They informed the matter to the hospital authority immediately and a missing diary being lodged to the local police station. Thereafter several application being submitted to several authorities including Human Rights Commission, Commissioner of Police and the OP. But all gone in vain. On 12.10.2007 the Complainant received an interim report from the Dy. Commissioner of Police stating that he said patient is untraceable. On 02.08.2010 the Complainant received another non traceability (enquiry) report in respect of the said missing indoor patient from the Joint Commissioner of Police (Crime) and on 22.04.2014 final non traceability report of the said missing indoor patient being released by Joint Commissioner of Police. Finding no other alternative, the Complainant moved a Writ Petition before the Hon’ble Justice ManjulaChellur and Hon’ble Justice JoymalyaBagchi and the said WP ordered the respondent Authorities to complete the proceedings in accordance with law and also gave liberty to the Complainant for declaration of her rights in accordance with the procedure. Till 06.01.2018 the noncompliance of the order by the Hon’ble Division Bench, the Complainant issued a legal notice to the OP through the lawyer, Pinku Sarkar. Then she further moved to Hon’ble High Court through WP and Hon’ble High Court confirmed that the Complainant being allowed to avail of her Civil Rights. Complainant submits that the missing person was only earning member of the family whose monthly income was Rs. 10,000/- per month at the time of missing from the hospital and the OP is liable to compensate her accordingly.
Thus the Complainant approaches to Ld. Forum for seeking order to direct OP to pay compensation for loss of their head of the family and only earning member while he was under supervision of the said Hospital Authority i.e. 19,50,000/- cost, and interest.
On the pleading of the parties the following points have been raised for the sake of proper and effective adjudication of the case.
1) Has the OP deficient in rendering service to the Complainant?
2) Is the Complainant entitled to get any relief or reliefs as prayed for?
Decision with Reasons
Points No. 1 and 2
All the points are taken together for the sake of convenience and brevity in discussion.
The Complainant has tendered evidence through affidavitand also given reply against the questionnaires set forth by the OP.
OP filed W. V. supported by an affidavit, but fails to file evidence. Therefore, the Complainant did not get any opportunity to put question to the OP.Both parties file BNAs.
It remains undisputed that the Complainant’s husband was admitted in the said SSKMHospital on 11.04.2005 by paying Rs. 1120/- and also a visiting card was issued. The patient is missing from his bed since the morning of 12.04.2005. The Complainant immediately lodged missing diary vide GDE No. 1332dt. 12.04.2005 to Bhabanipore P.S. Thereafter she submitted several application to several authorities including Human Rights Commission, Commissioner of Police and the OP.
According to OP, the claim of the Complainant is illegal and not maintainable and the Ld. Forum has got no jurisdiction to entertain the present case. OP has denied all the allegation made out in the Complaint. OP submits that the incident took place in the 2005 and therefore it is too much difficult to find out treatment sheet. OP further stated that documents for IPD medical reports to be preserved for 10 years and medico legal records (e.g. P.M. report, injury report etc.) should be preserved for 15 years as per Govt. order No. SBHI/2D-4/201 6/259 dt. 31.08.2016 issued by Director, State Bureau of Health Intelligence, Directorate of Health Service. In this matter since the patient was admitted 13 years back, it is not to possible to get the treatment documents of the said patient. OP referred section 13 sub-section-2 of the C.P. Act. This case cannot be decided by the Ld. Forum. OP also submitted that there is no documents of the fact that the Complainant suffered anything and/or any monetary loss or negligence on the part of the OP. Therefore, the matter of Compensation does not and cannot arise. OP submits that Police authorities has duly investigated the matter and the OPs are not liable to pay anything to the Complainant as per law.
Facts remains that the cause of action of this instant Complaint arose on 12.04.2005 and latest on 12.02.2018 when the Writ Petition before the Hon’ble High Court at Calcutta vide W.P. No. 2250 (w) of 2018 disposed of Complainant furnished the documents regarding the admission of the said missing person Md. Mustafa and all the legal steps taken by the Complainant and the several police reports. Perused those, we find that OP neither deny that the said missing person was admitted under the supervisionof OP nor challenged the Police report about missing of the said person from the hospital bed no. 44 at Curzon Ward in their W.V before the Ld. Forum. The only issue raised by OP is on the point of limitation. On 25.03.1999 in a case ‘M/s Spring Meados and Another vs. Harjol Ahluwalia’, Hon’ble Supreme Court referred the extraction of section 2 (1) (d) (ii) of the C.P. Act, 1986, where it is clearly mentioned:
“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;”
In the present case, we are concerned with clause (ii) of section 2 (1) (d). In the said clause a consumer would mean a person who hires or avails of the services. When the said missing person was taken to hospital by his wife and the said person treated by the doctor, the wife would come within the definition of Consumer having hired services and the husband would also become a consumer under the inclusive definition being a beneficiary of such service.
We find that the hospital authority shows tremendous negligence to take care the said missing person,a patient who will be going through a surgery. Moreover, they fails to submit any evidence that they took enough initiative to find out the said missing person.
We find that a diseased person who is missing since 2005 and Police report states he is untraceable. It is irrelevant that whether the missing person is alive or dead.The family members of the missing person is suffering for their livelihood. The Complainant prayed relief/reliefs to this Ld. Forum regarding the deficiency of service of the OP.
In view of the above discussion, we find that the Complainant admitted in her Consumer Complaint that said missing person is not declared dead by any competent court of law as per Indian Evidence Act. The Complainant has already filed a suit for declaration of Death of her husband before Ld. District Court at Howrah, which is still pending for disposal. Therefore, Ld. District Forum is bound by law and the Ld. District Forum has no jurisdiction to pass any verdict regarding relief.
Thus, all the points are disposed of accordingly.
In the result the Consumer Complaint fails on merit.
Hence,
Ordered
That the Complaint case be and the same is dismissed on the contest against OP without any cost.
