Delhi

StateCommission

CC/401/2018

MR. RAJAN THAKUR - Complainant(s)

Versus

YATHARTH HOSPITAL & TRAUMA CENTRE PVT. LTD. & ANR. - Opp.Party(s)

SUMIT KR. SHUKLA

23 Apr 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 23.04.2018

                                                                                                              

                                                                   Date of decision:02.05.2018

 

Complaint No-401/2018

 

 

IN THE MATTER OF:

 

Mr. Rajan Thakur

E-452, Hari Nagar,

Extension II,

Near Saurav Vihar,

Badarpur,

New Delhi-110044                                                …..Complainant

 

                                                                                                         

VERSUS

 

          Yatharth Hospital and Trauma Centre

          Pvt. Ltd.

          32, Omega-I, Greater Noida – 201304

          And

          B-15, (First Floor)

          Pandav Nagar,

          New Delhi                                                             .....Opposite Party                                                          

 

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. Sumit Kumar, Counsel for the Complainant

                  

PER:           ANIL SRIVASTAVA, MEMBER (G)

 

JUDGEMENT

 

1.           Alleging negligence on the part of Yatharth Hospital and Trauma Centre Pvt. Ltd., hereinafter referred to as Opposite Parties, Sh. Rajan Thakur resident of Delhi has filed a complaint before this Commission under Section 17 of the Consumer Protection Act 1986 (for short complainant, praying for the relief as under:

 

	Cost of medical treatment alongwith further medical cost towards operation of the Kidney from Opposite Party No.2.	Rs. 22,75,000.00   Alongwith interest from 23.02.2018 and approx. pendent-lite interest thereto.
	Towards agony and harassment suffered due to illegal acts, omission, medical negligence and deficiency in services on the part of Opposite Party No.2	Rs. 50,00,000.00
	Costs of the instant proceedings
	Pass such other and further order(s) as this Hon’ble State Commission may deem fit and proper in the facts and circumstances of the present case.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant having been diagnosed stone in right kidney visited the OP hospital at Greater Noida in March 2014 for the treatment and for this purpose he was placed under the treatment of Dr. Mohib Hamidi. The complainant having been recommended removal of stone through a surgical procedure was admitted in the OP Hospital on 21.04.2014 for treatment, including URS with DJ stenting by the authorised doctor and soon after the treatment the complainant was discharged from the OP hospital on 24.04.2014 with an advice to visit them again for follow up which was done on routine. However after a period of about two and a half years, the complainant had fallen sick inasmuch as he had fever quite frequently and later on the pathological tests having been done it was revealed that his haemoglobin level has come down very low. On examination by the Kailash Hospital, Greater Noida which Hospital the complainant contacted on 05.12.2017 it was revealed that there was stent in his kidney. It was found by that hospital that during the course of previous surgical procedure a stent was inserted in the kidney, which stent, as required, was supposed to have been removed after a period of 15 days from the date of discharge i.e. 24.04.2014. Removal was not done. The complainant has alleged that this act on the part of the OP amounts to negligence and due to this alleged negligence both the kidneys of the complainant had been severely damaged. The AIIMS which the complainant had also consulted opined that his kidneys have been damaged due to the stent in his kidney. Shivalik Hospital NOIDA also reached to the same conclusion. The complainant was put on dialysis due to the damage in the kidney.
4.           This complaint has been filed for compensation due to the negligence done by the OP. This complaint was listed before us for admission hearing on 23.04.2018 when the ld. Counsel for the complainant appeared and advanced his arguments. We have perused the records of the case and carefully considered the issues involved in the case.
5.           In the first instance we sought the clarification from the ld. Counsel as to how the complaint is maintainable before the State Commission at Delhi when the cause of action arose at Greater Noida where the treatment was done. The only explanation furnished was that the registered office of the OP hospital being at Delhi this commission enjoys the territorial jurisdiction. We had some difficulty in accepting this argument and therefore to arrive at a conclusion on the subject we may advert to the relevant provision of the Act, Section 17(2) of the Consumer Protection Act 1986 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 complainant was in Yatharth Wellness Hospital and Trauma Centre, Greater Noida, Uttar Pradesh. The Apex Court in the matter of Sonic Surgical versus National Insurance Company Ltd. As reported in (2010) 1 SCC 135 is pleased to hold 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 Yatharth Hospital and Trauma Centre, where the treatment was given and the said Institute is at Greater Noida which means, and to put it differently, the jurisdiction of the fora at Uttar Pradesh may have to be invoked.
10.           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.

 

11.                     In this view of the matter we hold that this Commission does not enjoy the territorial jurisdiction to hear this complaint and since this Commission lacks the territorial jurisdiction to hear and to dispose of the case we order return of the complaint granting liberty to the complainant to file it before the fora enjoying the jurisdiction. Since we order return of the complaint we express no opinion on the merit of the case.
12.                     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.
13.           Copy of the order may be forwarded to the parties to the case free of cost as statutorily required.
14.           File be consigned to records.

 

 

(ANIL SRIVASTAVA)                                                                                          (O.P.GUPTA)

MEMBER (GENERAL)                                                                           MEMBER (JUDICIAL)