State Consumer Disputes Redressal Commission
Amri Hospital vs Smt. Putul Das on 27 February, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/127/2014 (Arisen out of Order Dated 19/08/2014 in Case No. Complaint Case No. CC/38/2014 of District Kolkata-II) 1. Amri Hospital Salt Lake, A Unit of AMRI Hospital Ltd., 1C-16 & 17, Salt Lake City, Kolkata -700 098, KB-24, Sector-III, Salt Lake City. ...........Appellant(s) Versus 1. Smt. Putul Das W/o Sri Sanjoy Das & M/o Smt. Priyanka Biswas, 242/2, Maniktala Main Road, Kolkata -700 054. 2. Dr. Biswapati Mukherjee P-45A, CIT Road, Scheme - VIIM, Kankurgachi, Kolkata - 700 054. 3. Lohia Matri Seva Sadan 296-B, Rabindra Sarani, Kolkata - 700 006, P.S. - Girish Park. 4. Shusrusha Nursing Home Pvt. Ltd. P-290, CIT Scheme-6M, Upendra Chandra Banerjee Road, Kolkata - 700 054. 5. Bansal Diagnostics, Bansal Medicare Services Pvt. Ltd. P-27, Maniktala Main Road, 1st Floor, near Kankurgachi Rail Birdge, Kolkata - 700 054. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Petitioner: Mr. Barun Prasad Mr. Sovanlal Bera Mr. Subrata Mondal , Advocate For the Respondent: Mr. Saikat Mali, Advocate Mr. Abhik Das, Advocate ORDER 27.02.2015 MR. TARAPADA GANGOPADHYAY, HON'BLE MEMBER
The present Revision u/s 17 of the Consumer Protection Act, 1986 has been preferred against the Order No. 11 dated 19.8.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C.No. 38 of 2014, rejecting the petition challenging the maintainability of the Complaint on the ground that the Complainant is not a Consumer.
The brief facts of the case are that the Complainant being the mother of the deceased filed the Complaint on behalf of her daughter who died in the hospital of the Revisionist/OP No. 5, in course of her medical treatment relating to her pregnancy. The patient, since deceased, got admitted in the hospital of the OP No. 5 by the husband of the patient and the dead body of the patient was received by one Mr. Biki Das, declared to be a brother of the patient. It also appears from the averment in the petition of complaint that the patient had been residing with her mother, i.e. the Complainant, and was under the personal care of her mother because of her pregnancy and that the entire expenses for the medical treatment were borne by the mother of the patient, as averred in the Petition of Complaint. With this factual background, the Ld. District Forum passed the impugned order rejecting the maintainability petition challenging the locus standi of the Complainant. Aggrieved by such order the Revisionist-Hospital has preferred the instant Revision.
The Ld. Advocate for the Revisionist-Hospital submits that the Complainant is not a Consumer as she neither got the patient admitted, nor did make any payment of hospital expenses, not even received the dead body of the patient from the hospital, and thus the Complainant is in no way related to hiring medical services in respect of the patient from the Revisionist-Hospital.
It is also submitted by the Ld. Advocate that from the declaration in the Admission/Consent Form it is revealed that the husband of the deceased patient undertook to take the responsibility of making payment of the hospital expenses to the Revisionist-Hospital, and thus the said declaration runs contrary to the averment in the Complaint by the Complainant about bearing the medical expenses by the Complainant herself.
The Ld. Advocate further submits that the Complainant being not a legal heir of her deceased daughter as per Hindu Succession Act, nor being a beneficiary in respect of the said treatment, she has no competence to file the present Complaint and hence, the Complainant being a stranger to the case on hand, has no locus standi to file the instant Complaint. The Ld. Advocate continues that thus on the ground of mis-joinder of party the Complaint should have been rejected by the Ld. District Forum. The Ld. Advocate concludes that in view of the aforesaid submission the impugned order should be set aside and the Complaint should be dismissed.
On the other hand, the Ld. Advocate for the Respondent/Complainant submits that the deceased patient had been residing with her mother under her personal care during her pregnancy as per social custom prevalent in West Bengal and the mother bore the expenses of medical treatment of the deceased daughter, as averred in the Petition of Complaint, because of inseparable bond of blood between the mother and the daughter.
It is also emphatically submitted by the Ld. Advocate that the mother being a legal representative, as referred to u/s 2(1)(b)(v) of the Consumer Protection Act, 1986, of her deceased daughter, does qualify for filing the Complaint, no matter whether or not the mother is a legal heir of the daughter, which is relevant only in case of devolution of interest in the property as per the Hindu Succession Act within which the present case of medical negligence does not fall.
The Ld. Advocate further submits that the inclusive definition of the Complainant u/s 2(1)(b)(v) of the Consumer Protection Act is wide enough to cover within it the mother of the deceased daughter as a legal representative of the patient after the death of the patient.
The Ld. Advocate continues that as per provisions of the Consumer Protection Act a Consumer has a duty to pay consideration/cost for hiring the medical services, but the provisions of the said Act does not explicitly stipulate about who would pay the consideration/cost, and that thus there is no legal bar to bear the expenses by any of the legal representatives of the patient as is the mother in the present case.
The Ld. Advocate finally submits that even where the patient is a married daughter, the parents, who are required to spend for the treatment, are also Consumers in view of the decision of the Hon'ble Bombay High Court in Rajaram S.Parale Vs. Dr. Kalpana Desai, reported in 1998 3 CPR 398 (Bombay).
The Ld. Advocate concludes that in view of the aforesaid circumstances, the impugned order in favour of the maintainability of the Complaint should be sustained, there being no illegality or impropriety in the impugned order.
We have heard both the sides, considered their rival submissions and perused the materials on records.
It is very clear from a plain reading of the provisions of Section 2(1)(b)(v) read with Section 2(1)(d) of the Consumer Protection Act, 1986 that the term legal representative/legal heir has a very wide connotation with matter of filing of a Complaint by Consumer in case of death of a patient. In the present case, the patient, who was under the personal care of her mother during her pregnancy as per social custom prevalent in West Bengal, having died, her mother filed the Complaint as her legal representative, which does not appear to be contrary to the provisions of Section 2(1)(b)(v) of the Consumer Protection Act, 1986. In this context, reliance is placed on a decision of the Hon'ble apex Court in M/s. Spring Medows Hospital & Anr. Vs. Harjol Ahluwalia, reported in 1998 4 SCC 39, wherein it was held that the parents would come within the wide inclusive definition of Consumer u/s 2(1)(d)(ii) of the Consumer Protection Act, 1986.
On the above facts and circumstances of the case we find strong force in the submission of the Ld. Advocate for the Respondent/Complainant and hence, we do not find any ground to interfere with the impugned order regarding rejection of the petition challenging the maintainability of the complaint case.
Consequently, the Revision is dismissed and the impugned order is affirmed. The Ld. District Forum shall proceed with the Complaint Case on merits and dispose of the same in accordance with the provisions of the law as expeditiously as possible. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER