State Consumer Disputes Redressal Commission
Dr. Suresh Kumar Bajoria vs Mr. Tanmoy Podder on 10 February, 2017
Daily Order Tripura State Consumer Disputes Redressal Commission, Agartala. Case No.RP.1.2017 Dr. Suresh Kumar Bajoria, S/o Sri Harekrishna Bajoria, Resident of Tolly Apartment, A-43, 49/49 Prince Gulam Md. Shah Road, Kolkata-700033. ... ... ... ... Petitioner/Opposite Party No.3. Mr. Tanmoy Podder, S/o Sri Jiten Podder, Resident of East Shibnagar, College Road, P.O. Agartala College, P.S. East Agartala, District: West Tripura. .... ... ... ... Respondent/Complainant
NH Rabindranath Tagore International Institute of Cardiac Science, Premises No. 1489, 124 Mukundapur, EM Bypass, Kolkata-700099, West Bengal.
NH Rabindranath Tagore International Institute of Cardiac Science, Branch Office at Agartala, Shyamali Bazaar, West Tripura, Pin: 799006.
Dr. Shibaji Basu, Rash Behari Avenue, Kolkata-700019.
... ... ... ... ... Respondents/Opposite Parties Present Mr. Justice U.B. Saha, President, State Commission, Tripura.
Mrs. Sobhana Datta, Member, State Commission, Tripura.
Mr. Narayan Ch. Sharma, Member, State Commission, Tripura.
For the Petitioner: Mr. Sankar Bhattacharya, Adv. For the Respondent No.1/Complainant: Ms. Asmita Banik, Adv. Date of Hearing and Delivery of Judgment:10.02.2017. J U D G M E N T [O R A L] U.B. Saha,J,
The petitioner, Dr. Suresh Kumar Bajoria, who was the opposite party no.3, before the Ld. District Consumers Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) has filed this Revision Petition against the order dated 25.11.2016 passed by the District Forum in Case No.C.C. 34 of 2016, wherein, the District Forum considering the pleadings of the parties rejected the objection raised by the petitioner regarding territorial jurisdiction.
Heard Mr. Sankar Bhattacharya, Ld. Counsel appearing for the petitioner, Dr. Suresh Kumar Bajoria (hereinafter referred to as opposite party no.3) as well as Ms. Asmita Banik, Ld. Counsel appearing for the respondent-complainant, Mr. Tanmoy Podder (hereinafter referred to as complainant). None appears for the respondent nos.2 to 4.
Facts needed to be discussed are as follows:
The complainant, Mr. Tanmoy Podder has filed a complaint case under section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum alleging that in the first part of March, 2015, he felt severe abdominal pain and consulted one Dr. Joy Chakraborty of Agartala. After ultrasonography, a kidney stone measuring 12.2 mm was detected. Thereafter, on 11.03.2015, he got admitted in NH Rabindranath Tagore International Institute of Cardiac Science (hereinafter referred to as NH Rabindranath Tagore Hospital/Hospital), the respondent no.2 herein, who was the opposite party no.1 & 2 in the complaint case where he was operated by the petitioner-opposite party no.3 and two other doctors namely, Dr. Debashish Das and Dr. Vivek Garg. After his operation, again he went to the NH Rabindranath Tagore Hospital on 05.04.2015 for removal of DJ stent which was inserted at the time of his operation of kidney for removal of stone. On 07.04.2015, the said DJ stent was removed. Some medicines were prescribed and he was treated in the O.P.D. of the said Hospital. After five days, he was discharged. After three months of his discharge, he suddenly felt severe pain on the same place. He went to Dr. Joy Chakraborty and consulted with him on 10.07.2015, who referred him to a neurologist namely, Dr. Bijit Lodh. Dr. Lodh after his checkup clearly observed in his prescription-failed RTURSL. According to the complainant, again he went to Kolkata and admitted in respondent no. 2 i.e. the opposite party no.1, NH Rabindranath Tagore Hospital on 16.07.2015 and the opposite party No. 3 present petitioner conducted his operation. As after second operation, there was repetition of abdominal pain, again on 06.02.2016, he consulted the doctor at Agartala and after ultrasonography, stone size of 1.25 mm was detected. Thus, he lost faith upon the opposite party no.1 Hospital, the respondent no.2 herein, and on 10.02.2016, he consulted doctor at Fortis Hospital, Kolkata. On 12.02.2016, he was operated by the Doctor of Fortis Hospital, Kolkata and discharged on 13.02.2016. As the complainant has incurred huge amount of money apart from physical and mental sufferings for his operation at opposite party no.1, which was not successful according to him, he served notice upon the Hospital, the opposite party no.1 & 2 and other doctors including the petitioner. The notice upon the respondents, the opposite party no.2, Hospital answered the same denying his allegations. Thereafter, he has filed the complaint petition under section 12 of the Consumers Protection Act, 1986 seeking compensation for Rs.20 lacs before the Ld. District Forum.
. On receipt of the summons of the District Forum, the petitioner has appeared and prayed for time to challenge the territorial jurisdiction of the Ld. District Forum and the opposite party no.1, NH Rabindranath Tagore Hospital after appearing before the District Forum has also challenged its territorial jurisdiction. On 28.07.2016, the Ld. District Forum heard on question of territorial jurisdiction and after hearing held that it has the jurisdiction to entertain the petition as the opposite party no.1 is doing its business at Agartala.
. Being aggrieved by the order dated 28.07.2016, the present petitioner has preferred a Revision Petition before this Commission which was numbered as Revision Petition No. 04 of 2016. On 19.09.2016, the said Revision Petition was taken up for final hearing as agreed by the Ld. Counsel appearing for the parties and after hearing the order of the Ld. Tribunal was set aside and the matter was remanded for deciding afresh after hearing the parties. On 25.11.2016, the Ld. District Forum again heard the parties on the question of territorial jurisdiction and the maintainability of the complaint petition and held that the Ld. District Forum has the jurisdiction to decide the complaint as opposite party no.1, NH Rabindranath Tagore Hospital has been carrying business at Agartala and they are also organizing special clinic. Being aggrieved by the aforesaid order dated 25.11.2016, the present petitioner; the opposite party no.3 has preferred the instant Revision Petition.
6. Mr. Bhattacharya, Ld. Counsel, while urging for setting aside the order of Ld. District Forum, submits that neither the cause of action nor part of cause of action arose within the territorial jurisdiction of the District Forum, as the complainant Mr. Tanmoy Podder was never treated by the petitioner as well as any other doctors of NH Rabindranath Tagore Hospital at Agartala. Thus, the petitioner has no cause of action arose within the territorial jurisdiction of the District Forum and the Ld. District Forum should have dismissed the complaint petition on that ground alone. In support of his aforesaid contention, he has relied upon the decision of the Hon'ble Supreme Court in Sonic Surgical Vs National Insurance Company Ltd., 2010 CTJ 2 (Supreme Court) (CP). He has also relied upon para 6,7 & 8 of Puran Chand Wadhwa Vs Hamil Era Textiles Ltd. 2003 STPL 13737 (NC) wherein, the Hon'ble National Consumer Disputes Redressal Commission (hereinafter referred to as National Commission) has decided regarding the question of territorial jurisdiction which is as follows:
"6. On the first point, the argument of the complainant - who argued himself - is that, Section 20 of CPC and Section 11 (1) of CPA 1996 read the same, except that in the case of Consumer Protection Act, wording 'carries on business or has a branch office' has been added. According to him he is protected/covered by Section 11 (2) (C) of CPA which has a common reading with Section 20 (C) of CPC. Hence, if the Civil Court has jurisdiction - same shall be the position in the case of consumer forums. For supporting his case, he relies on the case of Morgan Stanley Mutual Fund v. SEBI and Ors. (Civil Appeals Nos. 4584 & 4585 of 1994). According to him, cause of action arose partly in Chandigarh, as he had deposited the money originally at Chandigarh and had also received the interest payment from Punjab & Sindh Bank, Chandigarh who needs to be treated as their agent hence covered by Section 11 (2)(a) and (c) of CPA, 1986. On the other hand it was argued by the learned Counsel for the Respondents, that Section 11(2)(a) does not permit the case to be entertained by the consumer forum at Chandigarh as they have no branch office or any place of business at Chandigarh. Payments through Banks are made to facilitate the share holders receiving the payment quickly, which they do as Bankers, in discharge of their normal functions. They cannot be called their Agent. The case could only be instituted in Bombay, where their Head Office is. For this, he relies on judgment of the Hon'ble Supreme Court in H.P. Gupta v. Hira Lal 1970(1) SCC 437 and judgement of this Commission in revision Petition 163 of 1991 GDA v. Smt. Sunita Garg passed on 18.3.1992.
7. Before we go into the question of merits of the case, we would discuss the question of jurisdiction. It is now settled law that while the Consumer Forum has the trappings of a civil court but we are not civil courts. For 'substantive' purpose, Consumer Protection Act is a wholesome and in itself a complete enactment. Section 11 of this Act reads as follows:
"11 Jurisdiction of the District Forum - (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs] (2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-
(a) the opposite party 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, or
(b) 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 case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises."
8. While one may concede that Section 20 of CPC and Section 11 of CPA - 1986 had a common reading - but this was before the amendment made in the Act in June 1983. By an amendment to the CPA - 1986 in June 1983, word "carries on business or has a branch office or" have been added. In our view legislative intent is clear. The amendment is part of the statute and has not been challenged. Consumer Forums cannot go beyond or behind the provisions of the Act. In our view, it is not in dispute that the Respondent neither has any business now any branch office in Chandigarh. The effort by the petitioner to bring in Punjab and Sindh Bank as an Agent of the Respondent with a view to fall within Section 11(2)(c), is too naive to be accepted and dealt in by us. Bank is only a facilitator to accept the money at the time of floating of debentures and encash cheques issued by the Respondent. This is limited service being rendered by them for all aspiring investors - by no stretch of imagination can they be called the Agents of the Respondent. We see no action wholly or the part takingplace in Chandigarh - Debentures were issued from Bombay; Two instalments as interest on Debentures were issued from Bombay payable at Chandigarh; Debentures were to be redeemed from Bombay, No action whatsoever could be said to be performed at Chandigarh. We have seen the judgement of the Hon'ble Supreme Court in the case of Morgan Stanley Mutual Fund v. SEBI & Ors. After going through it we do not find that the present case has anything common with the facts and results of that case as it dealt with situation / cases dealing with injunction. However relying upon the Halsbury's Laws of England the Supreme Court goes on to state that 'As per as Indian is concerned, the residences of the company is where the registered office is located. Normally cases should be filed only where the registered office of the company is situated. The point at issue was more specifically dealt in the context of Companies Act by Hon'ble Supreme Court in the case of H.P. Gupta v. Hira Lal where in it was held that the cause of action would arise at the place where registered officer of the company is situated. This view was confirmed / reiterated by the Hon'ble Supreme Court in the case of H.V. Jaya Ram v. ICICI and Ors. [1999 (7) Scale - 481]. National Commission in the case of GDA v. Smt. Sunita Garg (supra) had held that 'the very fact that the amount of initial deposit for the flat (in Ghaziabad) was remitted through the Branch of Vijaya Bank at Chandigarh will not entitle the complainant to contend that any part of the cause of action had arisen in Chandigarh. (Emphasis supplied) On the point of jurisdiction another point made by the Petitioner is that Consumer Protection Act is a piece of beneficial legislation and the poor small investor could not be expected to run to several places in this case to Bombay for recovery of less than Rs. 2000/-. It also could not be the case of the Petitioner that the Respondents and similarly placed companies could be facing litigation in thousands of courts spread over the country. We have also the Hon'ble Supreme Court warning us of the pit falls when it observed in the case of Morgan Stanley Mutual Fund v. SEBI and Ors.
"There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the fora seem reality to oblige. We think such a tendency should be curbed....""
He has also relied upon a judgment of this Commission in Arithrik Basak Vs Apollo Hospital Enterprise Ltd. and others (CC.1/2016) wherein, this Commission relying upon the Sonic Surgical (supra) has decided a similar question arises in the instant case.
7. On the other hand, Ms. Banik, Ld. Counsel appearing for the respondent-complainant has referred to a judgment of the Hon'ble National Commission in New India Assurance Company Ltd. Vs Lasa Footwear 2013 STPL 1943 NC, particularly, the paragraph 9 of the said decision.
8. Upon perusal of the said judgment, we are of the opinion that the decision relied upon by Ms. Banik has no application in the instant case. After hearing the Ld. Counsel for the parties and going through the documents including the advertisement published on 2nd July, 2016 in Dainik Sambad, this Commission is of considered opinion that the petitioner was never treated by the opposite party, Hospital and the present petitioner or any other doctors of opposite party no.1 at Agartala. "In Sonic Surgical (supra), the Apex Court dealt with section 17 (2) of the C.P. Act, 1986, which is pari materia to the provisions of 11 (2) of the C.P. Act, and held that the expression within 'branch office' in the amended Section 17 (2) would mean the branch office where the cause of action has arisen meaning thereby, even if in a particular place there is a branch office, that itself would not give the jurisdiction unless the cause of action is there."
9. In Las Footwear (supra), the Hon'ble National Commission, while considering the judgment and order dated 07.12.2006 passed by the State Consumer Disputes Redressal Commission, Delhi wherein, the State Commission allowed the complaint filed by the respondent therein, and directed the appellant Insurance Company to pay a sum of Rs.5 lacs to the respondent-complainant after deducting the sum of Rs.2,78,175/- already paid along with Rs.10,000/- towards cost held that the State Commission of Delhi had no jurisdiction in view of the decision of the Apex Court in Sonic Surgical (supra) and allowed the appeal of the Insurance Company, New India Assurance Company Ltd. setting aside the order of the the State Consumer Disputes Redressal Commission, Delhi and dismissed the complaint reserving the liberty with the respondent to file a fresh complaint before the appropriate Forum.
10. In the instant case, admittedly, the cause of action which is a bundle of facts relating to medical negligence arises at Kolkata only, where the complainant had undergone first operation in the Hospital of opposite party no.1 at the hands of petitioner and some other doctors. More so, the complainant in his complaint in paragraph 15 has contended that there has a corresponding office of opposite party no.1 at Shyamali Bazaar, Agartala within the jurisdiction of the District Forum is not correct. So far the advertisement dated 2nd July in 'Dainik Sambad' relating to holding a clinic at Astha Diagnostic Centre by other doctors of opposite party No. 1, there is no evidence that the said advertisement was issued by the Op No. 1. Even if the said advertisement was issued by the opposite party No. 1, then also no cause of action arose so far the complainant is concerned, as admittedly he was not treated in that clinic. Therefore, in view of provision of section 11 (2) of the C.P. Act, 1986, the jurisdiction to entertain the complaint of the present consumer is with the Kolkata Fora, not with the Ld. District Forum, Agartala. Therefore, no cause of action or part of cause of action could be said to have been arisen with the territorial jurisdiction of the Ld. District Forum. There is no doubt that admittedly, the C.P. Act is a beneficial legislation, but Forum shall not go out of the boundaries of law providing opportunity under the Act to satisfy the desires of anyone.
11. In view of the above, the impugned order dated 25.11.2016 passed by the Ld. District Forum in Case No.CC-34/2016 is hereby set aside. The Ld. District Forum is directed to return the complaint to the complainant, the respondent no.1 herein, to file a fresh complaint before the appropriate Fora, if so advised, as the complainant raised some facts about the negligence of the doctors of the opposite party, Hospital including the petitioner.
In the result, the Revision Petition is allowed. Send down the records to the Ld. District Forum, West Tripura, Agartala.
Copy of this order be supplied to the Ld. Counsel appearing for the parties.