State Consumer Disputes Redressal Commission
Dr. Anil Kumar Garg vs Basant Kaur & Another on 13 January, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.6 of 2022
Date of institution : 06.01.2022
Date of decision : 13.01.2022
Dr. Anil Kumar Garg C/o Dr. Atma Ram Eye Hospital, Bhikhi, Tehsil
and District Mansa.
....Appellant/Opposite Party No.1
Versus
1. Basant Kaur (since deceased) wife of Niranjan Singh resident of
Village Ralla, Tehsil and District Mansa, through Legal
Representative Major Singh son of Sh. Niranjan Singh resident
of Village Ralla, Tehsil and District Mansa.
....Respondent/Complainant
2. Dr. Atma Ram Eye Hospital, Bhikhi, Tehsil and District Mansa,
through its competent authority.
....Proforma Respondent/Opposite Party No.2
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 27.12.2021 passed by the
District Consumer Disputes Redressal
Forum (now, "Commission") Mansa.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By:-
For the appellant : Sh. Sahil Khunger, Advocate JUSTICE DAYA CHAUDHARY, PRESIDENT Appellant/opposite party No.1-Dr. Anil Kumar Garg has filed the present appeal under Section 41 of the Consumer Protection First Appeal No.6 of 2022 2 Act, 2019 to challenge the impugned order dated 27.12.2021 passed by the District Consumer Disputes Redressal Commission), Mansa (in short, "the District Commission") in CC No.153 of 2018.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out in the present appeal are that respondent No.1/complainant-Basant Kaur instituted a complaint alleging medical negligence against the appellant/opposite party No.1 and others. During the pendency of the complaint, the complainant Basant Kaur expired on 22.11.2019. Thereafter, an application for impleading legal heirs of deceased Basant Kaur was filed on 07.04.2021 by one Major Singh claiming himself to be son of Basant Kaur (since deceased). In the said application, it was mentioned that Basant Kaur left behind her legal heirs namely (i) Kartar Kaur (ii) Angrej Kaur (iii) Balwant Kaur (iv) Surinder Kaur and
(v) Major Singh. Reply to that application was also filed. The application for impleading legal heirs of deceased complainant was allowed vide order dated 27.12.2021.
4. Said order dated 27.12.2021 passed by the District Commission, whereby the application for impleading legal heirs of the deceased complainant was allowed, is the subject matter of challenge before this Commission by way of filing the present appeal. First Appeal No.6 of 2022 3
5. Learned counsel for the appellant submits that the daughters of the deceased complainant, who had been impleaded as LRs, are married and they were not dependent upon the deceased complainant. All the four daughters gave their authority letter to Major Singh just to show that they had no interest or connection with the complainant. Learned counsel also submits that nothing has been said in the application about the husband of the complainant, as to whether he was alive or not. At the end, learned counsel submits that the cause of action involved in the complaint had ended with the death of the complainant. In support of his contentions, learned counsel has relied upon judgment passed by the Hon'ble National Commission in case reported as (Shanti Devi & Ors. v. Dr. Manoj Sharma & Ors.) 2012 (3) CPJ 742.
6. Heard arguments of the learned counsel for the appellant at the admission stage of the appeal. We have also perused the impugned order dated 27.12.2021 and other documents available on the file.
7. Facts of the case with regard to filing of the complaint by complainant Basant Kaur, her death on 22.11.2019, moving application for impleading legal heirs of deceased Basant Kaur and order dated 27.12.2021 passed on the said application are not disputed. It is also not disputed that the complaint filed by the complainant is still pending before the District Commission and the First Appeal No.6 of 2022 4 same is still to be finally argued. The relation of the LRs with the deceased complainant is also not disputed.
8. The only argument has been raised that the daughters are married and independent and as such they cannot be brought on record being LRs of the deceased. Nothing has been shown to us as to why the LRs of the deceased cannot be brought on record nor any such provision or case law has been produced. The word "complainant" is defined in Section 2(5) of the Act, which is reduced as under:
"(5) "complainant" means--
(i) a consumer; or
(ii) any voluntary consumer association registered under any law for the time being in force; or
(iii) the Central Government or any State Government; or
(iv) the Central Authority; or
(v) one or more consumers, where there are numerous consumers having the same interest; or
(vi) in case of death of a consumer, his legal heir or legal representative; or
(vii) in case of a consumer being a minor, his parent or legal guardian;
9. Perusal of above reproduced definition of 'complainant shows that in case of death of a consumer, his/her legal heirs or legal representative are the complainant(s).
10. Further, Order XXII(3) of the Civil Procedure Code reads as under:
"3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.--
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the First Appeal No.6 of 2022 5 sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit."
11. So far as the argument that that the daughters of the complainant are married and independent is concerned, the Hon'ble Supreme Court in case reported as (Manjuri Bera (Smt.) v. Oriental Insurance Co. Ltd. & Anr.) (2007) 10 SCC 643 has dealt with the case of a married daughter of the deceased and it was held that liability to pay compensation does not cease because of absence of dependency of the concerned legal representative. It was further held in Paras No.11 and 12 as under:
"11. According to Section 2(11) CPC, "legal representative"
means a person who in law represents the estate of a de ceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child." First Appeal No.6 of 2022 6
12. By relying upon the aforesaid judgment in Civil Appeal Nos.242-243 of 2020 (National Insurance Company Limited v. Birender Singh & Ors.) decided on 13.01.2020, the Hon'ble Supreme Court has held that the compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. It is also settled that the legal representatives of the deceased have a right to apply for compensation. Even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Court to consider the application irrespective of the fact that the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only.
13. Thus, it is clear that after the death of the complainant, the legal heirs are entitled for the claim/relief, which has been sought in the complaint. No provision has been produced by the learned counsel for the appellant that LRs/legal heirs of the deceased cannot be brought on record. The authority relied upon by learned counsel for the appellant is not applicable in view of the latest laid down by the Hon'ble Supreme Court in the judgment as discussed above. There is no merit in the contentions raised by learned counsel for the appellant.
14. Accordingly, the present appeal being devoid of any merit is hereby dismissed in limine. However, the appellant is at liberty to First Appeal No.6 of 2022 7 raise the legal arguments if any at the time of hearing of the complaint, which is still pending.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER January 13, 2022.
(Gurmeet S)