KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.227/2019

JUDGEMENT DATED : 17.12.2024

(Against the order in C.C.No.75/2012 on the file of DCDRC, Thiruvananthapuram)

PRESENT:

APPELLANTS:

(by Adv. K.K. Rajeev Punnapuram)

Vs.

RESPONDENTS:

(by Adv. S. Laila for R3)

JUDGEMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  :  PRESIDENT

          The appellants are the complainants in C.C.No.75/2012 on the files of the Consumer Disputes Redressal Commission, Thiruvananthapuram (for short ‘the District Commission’).

2.       The appellants filed a complaint before the District Commission alleging medical negligence against opposite parties 2 and 3 in connection with the treatment of the deceased daughter of the complainants in the 1^st opposite party hospital.

3.       The District Commission on 03.07.2019 dismissed the said complaint for default on the reason that the complainants did not file the proof affidavit in lieu of the examination-in-chief even after giving specific direction.

4.       Aggrieved by the said order, this appeal has been filed.

5.       Heard both sides.  Perused the records.

6.       The learned counsel for the 3^rd opposite party has submitted that even though the complaint was filed in the year 2012, the complainants were not prepared to file proof affidavit till the date of dismissal of the complaint and in the said circumstances, there is no justification in granting one more opportunity to the complainants to contest the matter on merits. 

7.  It appears that the complaint was filed in the year 2012. The complainants filed I.A.No.147A/2014, praying for issuing a direction to the opposite parties to produce the original treatment records relating to the treatment of the deceased daughter of the complainants, namely, Anu V. Chandran @ Anu in the 1^st opposite party hospital.  It appears from the records that the said I.A. was considered by the District Commission only on 13.11.2017.  Thereafter, direction was issued to the opposite parties to produce the treatment records and posted the case to 09.01.2018.  Thereafter, the case stood adjourned to 19.02.2018.  On 19.02.2018, since the treatment records were not produced by the opposite parties, the District Commission recorded that adverse inference would be taken against the 3^rd opposite party.  This being the situation, it cannot be said that the disposal of the complaint was procrastinated at the insistence of the complainant.

8.  It appears from the records that the first complainant had filed proof affidavit in lieu of the examination-in-chief as early as on 31.12.2013.  Therefore, the observation of the District Commission, that the complainants did not file the proof affidavit, is factually incorrect.  Thus, it appears that the District Commission dismissed the complaint on the wrong notion that the complainants did not file the proof affidavit in lieu of the examination-in-chief and in the said circumstances, the order passed by the District Commission, dismissing the complaint, cannot be said to be legal, proper and correct and consequently, we set aside the same.

In the result, this appeal stands allowed, setting aside order dated 03.07.2019 in C.C.No.75/2012 passed by the District Commission dismissing the complaint for default and the District Commission is directed to take back the complaint on its files and dispose of the complaint in accordance with law, as expeditiously as possible and at any rate, within six months from the date of receipt of a copy of this judgement, affording reasonable opportunity to both sides to adduce evidence.  In the circumstances of the case, there is no order as to costs in this judgment.

SL