Delhi

StateCommission

A/880/2014

YOGESH KUMAR GUPTA - Complainant(s)

Versus

KAILASH HEART INSTITUTE & ANR. - Opp.Party(s)

14 Mar 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Hearing:14.03.2018

 

                                                                                                             Date of Decision:02.04.2018

 

FIRST APPEAL NO-880/2014

 

 

IN THE MATTER OF:

 

1. Sh. Yogesh Kumar Gupta,

44-D, Pocket IV,

Mayur vihar, Phase-I,

          New Delhi                                                             ….Appellant

 

                                                                                                                            

VERSUS

 

 

1. Kailash Heart Institute,

Registered Office:

A-101 New Ashok Nagar,

Delhi-110096      

          And

H-33, Sector 27,

Noida, Gautam Budh Nagar,

Uttar Pradesh                                                       ….Respondent no-1                                    

2. Dr. D.S. Ganbhir, M.D.,

CEO and Director

Kailash Heart Institute,

H-33, Sector 27,

Noida, Gautam Budh Nagar,

Uttar Pradesh                                                       ….Respondent no-2

 

3. Sr. S.K. Aggarwal,

Consultant Cardiologist,

Kailash Heart Institute,

H-33, Sector 27,

Noida, Gautam Budh Nagar,

Uttar Pradesh                                                       ….Respondent no-3

 

4. Estorts Heart Institute and

Research Center,

Okhla Road

New Delhi-110025                                                  ….Respondent no-4

 

 

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER

 

 

 1.   Whether reporters of local newspaper be allowed to see the judgment? Yes     

 2.   To be referred to the reporter or not?                                               Yes

 

 

Present:    Sh. Adil Alvi, Counsel for the Appellant

                Sh. Alok Aggarwal, Counsel for the respondent no 1 to 3

                 Sh. M. Siddiqui, Counsel for the respondent no-4

 

 

PER: SHRI ANIL SRIVASTAVA, MEMBER (G)

 

JUDGEMENT

1.         Sh. Yogesh Kumar Gupta had filed a complaint before the Distt. Consumer Disputes Redressal Forum (East) Delhi against The Kailash Heart Institute and ors as also against the Escorts Heart Institute and Research Centre alleging deficiency of service and negligence on the part of the Hospital, which complaint stood dismissed on 21.04.2014, against which this appeal has been preferred before this Commission under Section 15 of the Consumer Protection Act 1986, impugning the said order. The complainant before the Distt. Fora would be referred to as appellant and The Kailash Heart Institute would be referred to as respondents.
2.         The appeal has been preferred on the ground that the order dismissing the complaint on the ground of territorial jurisdiction of the forum, has been passed without appreciating the law and facts of the case. Secondly, a few other grounds have also been taken on merit of the case.
3.         In the first instance we note that the delay in filing the appeal as contemplated under the provisions of Section 15 of the Act, has already been condoned vide proceedings recorded on 22.07.2016. The matter was listed before us for final hearing on 14.03.2018 when the counsel for the parties appeared and advanced their arguments. We have perused the records of the case and given a careful consideration to the subject matter.
4.         The ld. Counsel for the appellant argued that the OPs were negligent in treating the appellant and therefore they are liable for the consequences and pay the compensation as prayed for in the complaint. The ld. Counsel for the respondents again raised the point of territorial jurisdiction of this Commission to hear and dispose of the case on the ground that the Hospital where the treatment was done against whom the complainant has expressed his gravamen is stationed at a place other than Delhi. Since the point of territorial jurisdiction has been raised we would first of all deliberate upon on this issue before we examine the case on merit, if required.
5.         For this purpose we may advert to the provisions of Section 17(a) of the Consumer Protection Act 1986. The said provision of the Act posits as under:

 

          A complaint shall be instituted in a State Commission within the limits of whose jurisdiction:

1. The OP or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain.
2. Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such each either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution
3. The cause of action, wholly or in part, arises.

 

6.         The treatment in the given case by the own admission of the appellant was in Kailash Heart Institute at Noida, Uttar Pradesh. The Ld. Counsel for the respondent has relied on the judgment of the Apex Court in the matter of Sonic Surgical versus National Insurance Company Ltd. As reported in (2010) 1 SCC 135 holding as under:

 

“In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated. We cannot agree with this contention. It will lead absurd consequences and lead to bench-hunting. In our opinion, the expression “branch office” in the amended Section 17(2) would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary to avoid absurdity.

1. In the present case, since the cause of action arose at Ambala, the State Consumer Disputes Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.
2. For the reasons stated hereinabove, we do not see any reason to interfere with the impugned order of NCDRC. Accordingly, this appeal is dismissed. No order as to costs.

 

7.        The Hon’ble NCDRC in the matter of Melanie Das vs. Royal Sundaram Alliance insurance Co. Ltd. as reported in I(2014) CPJ 302(NC) is pleased to hold as under:

                                                                     

“Mere existence of branch office of the Company would not ipso facts be determinative of territorial jurisdiction of State Commission. Cause of action also must arise at that place.”

 

8.         The Hon’ble NCDRC in New India Assurance Co. Ltd. Vs. Lasa Footwear IV(2012) CPJ 821 (NC) has held as under:

 

    “Expression branch office in the amended Section 17(2) would mean the branch office where cause of action has arisen. Provisions of Section 17(2) (b) and 11 (2)(b) of the Consumer protection Act 1986 are pari meteria.”

 

9.         From the above discussion and on perusal of the provision of the Act referred to above it is obvious that the place where the cause of action arose and the place where the Ops reside and work for gain need to be satisfied for arriving at a conclusion regarding territorial jurisdiction of the Commission. In the given case the cause of action arose at Kailash Heart Institute where the treatment was given and the said Heart Institute is at Noida which means, and to put it differently, the jurisdiction of the fora at Uttar Pradesh may have to be invoked. The Ld. Counsel for the appellant argued that the treatment in continuation was done at Escorts heart Institute Delhi and therefore the territorial jurisdiction of the Fora at Delhi can be invoked.
10. We cannot subscribe to this view of the appellant since no relief has been claimed from the Escorts Hospital Delhi and, secondly, the treatment done in the Escorts was after a gap of long time. It cannot be presumed by any stretch of imagination that the treatment at Escorts was in continuation of the treatment done at Kailash Heart Centre.
11. The Hon’ble NCDRC in the matter of Ram Murti Smarak Institute of Medical Science and Anr versus Radhey Shyam and Anr is pleased to hold as under:

On perusal of records it transpires that, complainant took treatment from OPs at Bareilly. The pacemaker was implanted by OP-2 Dr. Amreesh Agarwal at Shri Ram Murti Smarak Institute of Medical Science, Bareilly. Both the Fora erred in considering the cause of action in the District of Shahjahanpur. This view dovetails from the judgements of the Hon’ble Apex Court in the matter of K. Sagar, MD, Kiran Chit fund vs. A. Bal Reddy, Civil Appeal No.1498 of 2005 decided on 11.06.2008, reported in 2008(7) SCC 166, Sonic Surgical vs. National Insurance Company, IX (2000) SLT 111-IV (2009 CPJ 40 (SC) – Civil Appeal No-1560 of 2004 decided on 20.10.2009, according to which the District Forum at Shahjahanpur had no territorial jurisdiction to entertain the complaint in question.

12. In this view of the matter we find no infirmity in the orders passed by the Distt. Fora and we uphold it. Ordered accordingly.
13. However we reserve the rights of the complainants to approach the appropriate Fora to seek their remedy if so advised. They may take the advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works vs. PSG Industrial Institute (1995) 3 SCC 583 to seek exclusion of the time spent in prosecuting the complaint before the Commission.
14. Copy of the order may be forwarded to the parties to the case free of cost as statutorily required.
15. File be consigned to records.

 

 

(ANIL SRIVASTAVA)                                                                                          (O.P.GUPTA)

MEMBER (GENERAL)                                                                           MEMBER (JUDICIAL)