National Consumer Disputes Redressal
Dr. Vijayalakshmi & Anr. vs Abitha Padiyara & Anr. on 11 August, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1153 OF 2017 (Against the Order dated 23/01/2017 in Appeal No. 672/2015 of the State Commission Kerala) 1. DR. VIJAYALAKSHMI & ANR. MANAGING DIRECTOR, VIJAYALAKSHMI MEDICAL CENTRE, CHAKKARAPARAMBU, ERNAKULAM, KERALA-682028 2. DR. ANJUM KHALID, M/S. VIJAYALAKSHMI MEDICAL CENTRE, CHAKKARAPARAMBU, VENNALA P.O. ERNAKULAM KERALA-682028 ...........Petitioner(s) Versus 1. ABITHA PADIYARA & ANR. CHOORAKKUZHIYIL HOUSE, MALAKUVALLI P.O, MAJAPPRA IDUKKI KERALA-685602 2. M/S. NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE MYDHILY MANDIRAM JANATHA JN, PALARIVATTOM ERNAKULAM KERALA-682025 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. George Cherian, Advocate with Ms. Radha, Advocate For the Respondent :
Dated : 11 Aug 2017 ORDER DR. S. M. KANTIKAR, MEMBER
1. The complainant, Mrs. Abitha Padiyara, filed one complaint No.488 of 2013 against the OP, alleging medical negligence before the Ernakulam District Consumer Disputes Redressal Forum (in short the District Forum). It was dismissed in default due to continuous absence of the complainant. Thereafter, another fresh complaint No.805 of 2014 was filed by the complainant on 16-10-2014 on the same cause of action before the same District Forum.
2. The OP filed an IA No.999 of 2014 before the District Forum for the dismissal of the consumer complaint on the ground that the second complaint was time barred and not maintainable on the same cause of action. The District Forum dismissed the complaint; therefore, the complainant filed the First Appeal No.672 of 2015 before the Kerala State Consumer Disputes Redressal Commission (in short the State Commission). The State Commission allowed the appeal and the complaint was remanded back to District Forum for a fresh disposal. Being aggrieved by the impugned order, the OP/petitioner filed this revision petition.
3. We have heard the Counsel for the petitioner, who submitted that the second Complaint No.805 of 2014 filed by complainant was barred by time and by res judicata. It was filed on the same cause of action. Therefore, it is legally not tenable.
4. After our thoughtful consideration, in our view the complaint was dismissed in default. The District Forum has not concluded the matter of alleged medical negligence on merits, which needs consideration and proper adjudication. Therefore, we do not find any fault with the order of the State Commission. In the judgment of Hon'ble Apex Court in the case, Indian Machine Company Vs. Ansal Housing & Construction, 2016 (III) SCC 689, it was held that the second complaint on the same facts and the cause of action was maintainable, as the case was not decided on merits and was dismissed for non-appearance of the complainant.
5. On the basis of the foregoing discussion, we do not find any infirmity in the impugned order passed by the State Commission. The revision petition is therefore dismissed. The parties are directed to appear before the District Forum on 14-09-2017 for further proceedings. The District Forum shall conclude the matter within six months thereafter.
6. Copy of this order be sent to both the parties and their counsel also.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER