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First, as rightly pointed out by the learned counsel for the petitioner the order dated 20.10.2010 of the District Forum dismissing the interim application for bringing the legal representatives of Chandrappa on record and holding that after the death of Chandrappa the cause of action had been extinguished was not challenged by the respondent (legal representative) and hence attained finality qua the legal representative. Secondly, the complaint itself having abated with the cause of action with the complainant having died during the pendency of the complaint proceedings, the right to sue the petitioners for “personal injury” allegedly suffered by the complainant also did not survive. This is abundantly clear from the detailed discussion in the order of the Supreme Court in the aforesaid case (particularly, paragraph 9). 8. The view taken by the Apex Court in the case of Mukesh Kumari (Minior and Dead) by LRs v M. Lal Oswal Cancer Treatment and Research Foundation and Another was, in our respectful opinion, applicable to the specific facts and circumstances of that case and the observation, “Even otherwise the complaint was for compensation for medical negligence. In such a complaint the right to sue would survive in the legal heirs who would then be entitled to compensation” would not, therefore, have general applicability as sought to be claimed by the learned counsel for the respondent. 9. In view of the foregoing discussion, we allow the revision petition and set aside the orders of the State Commission and the District Forum. Needless to add, both the complaints are also dismissed as not being maintainable after the death of the patient H.B. Chandrappa. The parties shall bear their own costs.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

Mahisha Mardhini - A monument in the backyard ...

Mahisha Mardhini – A monument in the backyard of Shivappa Nayaka’s Palace (Photo credit: Wikipedia)

NEW DELHI

REVISION PETITION No. 2702 of 2011

(From the order dated 04.07.2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore in RP no. 12 of 2011)

1. Malnad Hospital and Institute of Oncology

Super Specialty Surgical Centre, 9th Mile Bus Stop, B. H. Road

P.O. Nidige, Shimoga – 577 222, Karnataka

2. Dr. Ramesh, Surgical Oncologist

Malnad Hospital and Institute of Oncology                            Petitioners

Super Specialty Surgical Centre, 9th Milestone, B. H. Road

P.O. Nidige, Shimoga – 577 222, Karnataka

3. Dr. Nandahalli Ravi, Surgical Oncologist

Malnad Hospital and Institute of Oncology

Super Specialty Surgical Centre, 9th Milestone, B. H. Road

P.O. Nidige, Shimoga – 577 222, Karnataka

 

versus

 

H. C. Eranna, Son of Late H. B. Chandrappa

Hosur, Nagar Halu Anche                                                    Respondent

Kadur Taluq, Chickmagalur, Karnataka

BEFORE:

HON’BLE MR. ANUPAM DASGUPTA                        PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA                 MEMBER

For the Petitioner                                              Mr. Nanda Kishore, Advocate

For the Respondent                                             Mr. C. M. Angadi, Advocate

 

Pronounced on  3rd July 2012

ORDER

ANUPAM DASGUPTA

 

1.       This revision petition is from the order dated 04.07.2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) dismissing revision petition no. 12 of 2011 filed by the petitioners. The said revision petition before the State Commission challenged the order dated 19.02.2011 of the District Consumer Disputes Redressal Forum, Shimoga (in short, ‘the District Forum’) on an interim application filed by the opposite parties (OPs – who are the petitioners before us) in connection with consumer complaint no. 11 of 2011 filed by the respondent.

2(i)    In the said interim application, the OPs contended that the father of the complainant (H. B. Chandrappa) who was the patient alleging medical negligence against OPs had himself filed an earlier consumer complaint (no. 125 of 2010) before the District Forum through his son H. C. Eranna (the complainant in C.C. no. 12 of 2011) as the holder of Chandrappa’s power of attorney. The previous complaint alleged medical negligence/deficiency in service against the same OPs in treating the said Chandrappa for cancer of his right jaw. However, during the pendency of the complaint before the District Forum, Chandrappa died. The legal representatives of the deceased complainant Chandrappa then filed an interim application before the District Forum seeking to pursue the complaint proceedings on behalf of the deceased. The OPs objected to this interim application on the ground that the cause of action, viz., alleged injury due to the alleged medical negligence suffered by the deceased complainant Chandrappa was in the nature of tortious “personal injury” to him which got extinguished with the demise of the person, i.e., Chandrappa claiming to have suffered such personal injury. On the other hand, the legal representatives of the deceased complainant contested this stand of the OPs on the ground that they had the right to pursue the complaint proceedings in accordance with the provisions of section 13(7) of the Consumer Protection Act, 1986 (hereafter, ‘the Act’).

(ii)     By its order dated 20.10.2010, the District Forum dismissed the said application (and hence also the complaint) holding, in agreement of the stand of the OPs, that the complaint had abated since the cause of action (and the right to sue) had been extinguished along with the death of the complainant claiming to have suffered the alleged medical negligence and, as such, the legal representatives of the deceased complainant could not continue with the complaint proceedings.

(iii)    Thereafter, H. C. Eranna, the holder of power of attorney of his late father filed a new complaint (C.C. no. 11 of 2011) against the same OPs before the same District Forum on the same allegations of medical negligence suffered by Chandrappa, but with the additional ground that Chandrappa had died as a result of the medical negligence of the OPs/petitioners. The OPs, on receiving notice of this complaint, filed an interim application opposing consideration of the complaint on the ground that this new complaint was also not maintainable ab initio, being barred by the principle of res judicata as well as the same legal ground opposing the earlier interim application of Chandrappa’s legal representatives continuing with the complaint after his demise.

(iv)    However, after considering the pleadings of the parties and the legal position on the subject based on several decisions, including that of the Supreme Court in the case ofMukesh Kumari (Minor and Deadby LRs v M. Lal Oswal Cancer Treatment and Research Foundation [(2004) 13 Supreme Court Cases 69], this time the District Forum thought it fit to dismiss the interim application of the OPs.

(v)     The OPs challenged this order of the District Forum by way of a revision petition before the State Commission. However, the latter too dismissed the revision petition of the OPs by its impugned order, with the following observations:

9.     It is not in dispute that the father of the complainant H. B. Chandrappa filed a complaint no. 125 of 2010 against the OPs alleging deficiency in service. During the course of the trial he died on 23.08.2010. Then his LR’s filed an application to bring them on record. Unfortunately, it is (sic – was) rejected by the District Forum on 20.10.2010. On the plain reading of section 13 (7) of the Consumer Protection Act, it makes (sic – is) abundantly clear that in the event of death of complainant who is the consumer or of the OPs against whom the complaint has been filed, provisions of Order XXII of the I Schedule of C.P.C shall apply. With all that, we fail to understand why the said IA was rejected by the District Forum on 20.10.2010.

10.     Merely because the said LR’s did not prefer any appeal or revision against the said order does not mean it has reached finality on merits so as to invoke res-judicata. Admittedly, the earlier complaint was not decided on merit so as to attract the proviso of section 11 of C.P.C. The decision in a summary proceeding will not amount to res-judicata. What is contemplated is the matter in dispute should be heard and finally decided on merit, but it is not so with the earlier complaint no. 125 of 2010. The said complaint came to be dismissed on technicality, that too that dismissal in our view is not justified.

11.     After the death of his father, the present complainant filed a fresh complaint well within the reasonable time. There is no delay. He being a beneficiary entitled to prosecute the case of medical negligence committed by the OPs. At this stage we don’t want to express our views on merits and demerits of the case, but so far as the maintainability of complaint is concerned, complainant is entitled to proceed with the said prosecution against the OP, being a heir of the original complainant as well as the beneficiary. In case of death of victim due to medical negligence, right to sue would survive in the legal heirs and they can claim the compensation.

12.     Under the circumstances, we find the impugned order is just and proper. OPs have not made out such substantial grounds and reasons so as to dismiss the said complaint at this initial stage as prayed. The revision petitioners have failed to show before this Commission that the impugned order is erroneous, suffers from legal infirmity, unsustainable in law or that it suffers from any error apparent on the face of record requiring our interference. We don’t find any illegality or irregularity in the impugned order”.

2(i)    Learned counsel for the petitioner has argued that the order dated 20.10.2010 of the District Forum dismissing the interim application filed by the legal representatives of late Chandrappa (who had died during the pendency of the complaint proceedings before the District Forum in consumer complaint case no. 125 of 2010) was not challenged further by the said legal representatives and hence, this order attained finality qua, the legal representatives in terms of provisions of section 24 of the Consumer Protection Act, 1986. Secondly, the ratio of the judgment of the Supreme Court in the case of Mukesh Kumari (Minor and Dead) by LRs v M. Lal Oswal Cancer Treatment and Research Foundation and Another [ (2004) 13 SCC 69] was inappropriate because not only was the principle of res judicata barring a new complaint on the same cause action from being filed by the respondent (son and one of the legal representatives of Chandrappa) who had also moved an interim application for bringing the legal representatives of lateChandrappa on record in complaint case no. 125 of 2010 applicable to the second complaint (Consumer Complaint no. 11 of 2011) but also because of the ratio of the judgment of the Supreme Court in the case of Melepurath Sankunni Ezhuthassan v Thekittil Geopalankutty Nair  [(1986) 1 SCC 118] in which specific the question of survival of right to sue under Order XXII of the Civil Procedure Code, 1908 in the event of death of a plaintiff was considered.

(ii)     Incidentally, section 13 (7) of the Act provides as under:

“(7)  In the event of death of a complainant who is a consumer or of the opposite party against whom the complaint has been filed, the provisions of Order XXII of the First Scheduled to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to the plaintiff and the defendant shall be construed as reference to a complainant or the opposite party, as the case may be”.

Hence the legal views on the ambit of Order XXII would also apply to matters considered by the Consumer Fora under section 13 (7) of the Act.

3.       Learned counsel has, in particular, drawn attention to the following discussion in the Apex Court’s order in the aforesaid case:

On May 16, 1983, the Appellant died during the pendency of this Appeal by Special Leave granted by this Court, leaving behind him two surviving grandsons and two granddaughters as his only heirs and legal representatives. On November 4, 1985, one grandson and one granddaughter filed Civil Miscellaneous Petition No. 43065 of 1985 to bring themselves and the other grandson and granddaughter on the record of the Appeal in place of the Appellant. As the said application was filed beyond time, they filed another Civil Miscellaneous Petition, namely, Civil Miscellaneous Petition No. 43066 of 1985, to condone the delay and to set aside the abatement of the Appeal. The question which falls to be determined is whether, by reason of the very fact of the death of the Appellant, the Appeal has abated, because if it has, the question whether the delay in filling the two applications for substitution and for setting aside the abatement of the Appeal by reason of the expiry of time should be condoned, will not arise.

 

                   2.       The facts material for deciding the above question may be briefly stated. The Appellant filed a suit in the Court of the Subordinate Judge, Ottappalam against the Respondent claiming a sum of Rs.5,500/- as damages for defamation. The Trial Court dismissed the suit with costs. The Appellant thereupon filed an appeal in the District Court of Palghat. The District Judge allowed the appeal and passed a decree awarding to the Appellant Rs.500/- as damages and proportionate costs both of the said appeal and suit. The Respondent then filed a second appeal against the decree of the District Judge and the Appellant filed his cross objections thereto. The High Court of Kerala allowed the second appeal, reversed the decree of the Appellate Court and dismissed the Appellant’s cross-objections as also the suit directing the parties to bear their own costs throughout. It is against this decree and judgment of the Kerala High Court that the present Appeal is directed.

 

                   3.       Order XXII of the Code of Civil Procedure, 1908 deals with death, marriage and insolvency of parties. As in the suit filed by the Appellant there was only one plaintiff and one defendant, we are not concerned with the provisions of Order XXII other than those relating to a sole plaintiff or a sole defendant. Rule 1 of Order XXII of the Code provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Thus, if the right to sue does not survive, the suit will abate on the death of the plaintiff. Under Rule 3 of Order XXII, where a sole plaintiff dies and the right to sue survives, the court on an application made in that behalf will cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit, If, however, no application in that behalf is made within the time prescribed by law, the suit will abate. Under Rule 9 (2), the court may set aside the abatement of the suit on the application of the person claiming to be the legal representative of the deceased plaintiff if he proves that he was prevented by any sufficient cause from continuing the suit. Clause (11) of section 2 of the Code defines legal representative as meaning inter alia “a person who in law represents the estate of a deceased person. Rule11 of Order XXII provides as follows:

 

                   “11. Application of Order to appeals. – In the application of this Order to appeals, so far as may be, the word ’plaintiff’ shall be held to include an appellant, the word ’defendant’ a respondent, and the word ’suit’ an appeal.

 

Thus, reading Rule 1 and Rule 11 of Order XXII together, in the case of an appeal Rule 1 would read:  “The death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives. Thus, where there is only one appellant and he dies during the pendency of the appeal, if his right to sue does not survive, the appeal will abate and his legal representative will have no right to be brought on the record to continue the appeal.

 

                   4.       In the present case, if the appellant’s right to sue had survived on his death, his right to prosecute the present Appeal would also survive, but if the right to sue would not have survived on his death, this Appeal also would not have survived and would abate. The question, therefore, is whether in a defamation action the right to sue survives if the plaintiff dies.

 

         X x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x   

         6.       So far as this country is concerned, which causes of action survive and which abate is laid down in section 306 of the Indian Succession Act, 1925, which provides as follows:

 

          “306. Demands and rights of action of or against deceased survive to and against executor or administrator – All demands whatsoever and all rights to prosecute or defend any action or special processing existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

 

Section 306 speaks of an action and not of an appeal. Reading section 306 along with Rules 1 and 11 of Order XXII of the Code of Civil procedure, 1908, it is, however, clear that a cause of action for defamation does not survive the death of the appellant.

 

                   8.       Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also.

 

9.       The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the District Court, the appeal would have equally abated because his suit had been dismissed by the Trial Court. Had he, however, died during the pendency of the second appeal filed by the respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As, however, the High Court allowed the second appeal and dismissed the suit, the present Appeal by Special Leave must abate because what the Appellant was seeking in this Appeal was to enforce his right to sue for damages for defamation. This right did not survive his death and accordingly the Appeal abated automatically on his death and his legal representatives acquired no right in law to be brought on the record in his place and stead.

 

         10.     For the above reasons, the Appeal is dismissed as having abated. The Civil Miscellaneous Petitions, namely, Civil Miscellaneous Petitions Nos. 43065 of 1985 and 43066 of 1985 are also dismissed as being not maintainable. There will be no order as to the costs of the Appeal and the Civil Miscellaneous Petitions”.

 

[Emphasis supplied]

 

4.       He also invited attention to the order of the Supreme Court in the case of M. Veerappa v Evelyn Sequeira and Ors. – [(1988) 1 SCC 556] dealing with the same set of issues and also relying on the above-mentioned order of the Apex Court in the case of Melepurath Sankunni Ezhuthassan v Thekittil Geopalankutty Nair.

5.       On the other hand, the learned counsel for the respondent has relied on the ratio of the judgment of the Supreme Court in the case of Mukesh Kumari (Minor and Dead) by LRs v M. Lal Oswal Cancer Treatment and Research Foundation and Another referred to above. He drew attention in particular the following observations of the Court:

  1. 4.   “In our view the order of the National Consumer Disputes Redressal Commission cannot be sustained. By an order dated 18.04.2002, the father and mother of the deceased claimants had already been brought on record as legal representatives. Of course, the father had already died on the date he was brought on record but the mother was alive and continued to be on record.
  2. 5.   It appears that the revision petition was dismissed for non-prosecution on 13.01.2003. On the application for restoration no specific order has been passed restoring or not restoring the revision petition. However, the last line of the impugned order states that the revision petition stands dismissed. This implies that the revision petition was restored. The only ground for then dismissing the revision petition is as follows:

“However, we find in this case the minor suffered injuries and he filed this complaint through his brother as his next friend and guardian in the presence of the father and mother and moreover during the pendency of the complaint the minor has died and now they want the complaint be proceeded with through the father and mother. We put it to the learned counsel as to how right to sue survives in the present case”.

  1. 6.   With great respect to the National Commission, we are unable to understand the reasoning of the Commission. The mother is already on record. The order dated 18.04.2002 allowing the mother to be brought on record must have been passed on the footing that the right to sue survived in the mother. Even otherwise the complaint was for compensation for medical negligence. In such a complaint the right to sue would survive in the legal heirs who would then be entitled to compensation”.

[Emphasis supplied]

6.       We have carefully considered the submissions of the learned counsel for the parties and gone through the orders of the Apex Court relied upon by them.

7.       In our view, in this case, the ratio of the judgment of the Apex Court in the case of Melepurath Sankunni Ezhuthassan v Thekittil Gopalankutty Nair would be squarely applicable.  First, as rightly pointed out by the learned counsel for the petitioner the order dated 20.10.2010 of the District Forum dismissing the interim application for bringing the legal representatives of Chandrappa on record and holding that after the death of Chandrappa the cause of action had been extinguished was not challenged by the respondent (legal representative) and hence attained finality qua the legal representative. Secondly, the complaint itself having abated with the cause of action with the complainant having died during the pendency of the complaint proceedings, the right to sue the petitioners for “personal injury” allegedly suffered by the complainant also did not survive. This is abundantly clear from the detailed discussion in the order of the Supreme Court in the aforesaid case (particularly, paragraph 9).

8.       The view taken by the Apex Court in the case of Mukesh Kumari (Minior and Dead) by LRs v M. Lal Oswal Cancer Treatment and Research Foundation and Another was, in our respectful opinion, applicable to the specific facts and circumstances of that case and the observation, “Even otherwise the complaint was for compensation for medical negligence. In such a complaint the right to sue would survive in the legal heirs who would then be entitled to compensation” would not, therefore, have general applicability as sought to be claimed by the learned counsel for the respondent.

9.       In view of the foregoing discussion, we allow the revision petition and set aside the orders of the State Commission and the District Forum. Needless to add, both the complaints are also dismissed as not being maintainable after the death of the patient H.B. Chandrappa. The parties shall bear their own costs.

 

Sd/-

……………………………………

[ Anupam Dasgupta ]

 

Sd/-

…………………………………….

[ Suresh Chandra ]

 

satish

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