State Consumer Disputes Redressal Commission
Dr.C.Palanivelu vs Krishnamoorthy on 1 December, 2008
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice N. KANNADASAN, PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER I DATED THIS THE 1ST DAY OF DECEMBER- 2008 R.P. No.66/2008 (Against the order in CMP 56/08 IN C.C.S.R.No.251/2007 on the file of the DCDRF, Coimbatore) 1. Dr.C.Palanivelu, Attached with Vedanayagam Hospital Pvt. Ltd., 133, East Bashyakaralu Road, R.S.Puram, Coimbatore. 2. Managing Director, :::Petitioners/Petitioners/O.Ps. Vedanayagam Rep. by Adv. M/s. Hospital Pvt. Ltd., Sarvabhauman Associates 133, East Bashyakaralu Road, G.Lavanya & N.Jayakkumar. R.S.Puram, Coimbatore. Vs 1. Krishnamoorthy, :::1st Respondent/1st Respondent/ S/o P.Kolandaisamy, Complainant. K.M.Thottam, College Road, Vellore, Namakkal Dist. 2. Tmt. Nallammal, :::2nd Respondent/2nd Respondent/ W/o Kulandaisamy, Proposed 2nd complainant. K.M.Thottam, College Road, Vellore, Namakkal Dist. O R D E R
N. KANNADASAN J. { Open Court}
1. No representation for Respondent.
2. The petitioners herein are the opposite parties, first respondent is the complainant and the 2nd respondent is the proposed 2nd complainant before the District Forum.
3. The Revision Petition is filed challenging an order passed by the District Forum in impleading the proposed 2nd complainant. The short ground raised in the Revision Petition is as to whether the proposed 2nd complainant could be impleaded nearly after 7-years from the date of the institution of the complaint alleging deficiency as against the petitioners/opposite parties.
4. The complaint is filed originally by the 1st respondent herein alleging deficiency as against the opposite parties/petitioners herein to the effect that there is negligence on the part of the opposite parties while treating his mother, who is sought to be impleaded now. A perusal of the complaint discloses that the deficiency is alleged while giving treatment in the course of removal of Gall Bladder of the complainants mother. Originally the complaint was filed before the State Commission during November-2001. Later on, the said complaint was transferred to the District Forum, Coimbatore after the enhancement of the pecuniary jurisdiction of the District Forum. During 2008 an application is filed by the proposed party viz., the mother of the complainant to implead as one of the complainants. In the affidavit filed in support of the said application, the only reason adduced to the effect that as she was immobilized due to wrong treatment, the complaint was preferred originally by her son. No other details are furnished in the said affidavit. In fact, the District Forum has also chosen to issue a notice to the opposite parties wherein, it is clearly indicated as follows:
You are hereby required to question of maintainability of the complaint.
The said notice is dated 29.1.2008. Thereafter, the District Forum has allowed the said application on the short ground that there is an allegation to the effect that the proposed party is the person who has suffered due to the alleged deficiency and accordingly it was allowed.
5. Even though, we are able to appreciate the reasons adduced by the District Forum while impleading the proposed party, we are of the opinion that the District Forum has not considered the undue delay and the lack of bonafide reasons on the part of the proposed party in filing such an application. The complaint was filed as early as in the year 2001 and that too by engaging a counsel. Even though all the provisions of C.P.C. cannot be made applicable to the proceedings before the Consumer Fora under the Consumer Protection Act, to decide the issue in question, we are constrained to peruse the Order-1 Rule 10(2) of CPC r/w Section 21 of Limitation Act. Order-1 Rule-10 (2) which proceeds as follows:
10. Suit in name of wrong plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.- The Court at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
A perusal of the above provision discloses that the courts are empowered to implead any person or to strike out who has been wrongly impleaded at any stage to adjudicate and settle the issues involved in the suit. However, the above provision is subject to Section 21 of the Limitation Act.
Proviso Section 21 of Limitation Act proceeds the following manner:
21. Effect of substituting or adding new plaintiff or defendant.-
(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
(2) Nothing in sub-section(1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.
Provided that where the court is satisfied that the omission to implead a new plaintiff or defendant made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
6. The above proviso makes it clear that the court has to satisfy itself that the omission to implead the new plaintiff or defendant was due to mistake made in good faith.
In the case on hand, nothing is indicated in the affidavit filed in support of the petition that the said mistake took place in good faith. In this connection, it is useful to refer the decisions rendered by the Honble Apex Court in the case of Ramprasad Dagaduram, -vs- Vijayakumar Motilal Hirakhanwala and others reported in A.I.R. 1967 Supreme Court-278. In the said decision, the Honble Supreme Court has made it clear that Order-1 Rule-10(1) of C.P.C. will have to be looked into in the light of Section-22 of Limitation Act.
According to the Supreme Court, whenever an application is filed under the said provision of CPC the applicability of Limitation Act comes into play. Similarly, the Supreme Court in the decision rendered in the case of Ramalingam Chettiar vs- P.K.Pattabiraman and another reported in A.I.R. 2001 Supreme Court -1185 observed that when an application for impleadment is filed the courts will have look into to the mistake occurred in good faith.
In another decision rendered by Allahabad High Court in the case of M/s. C.Doctor and Company Ltd., and another vs- M/s. Belwal Spinning Mills Ltd., reported in A.I.R. 1995 Allahabad -19 it is held that Courts shall not allow the impleadment of any party whenever such impleadment is not possible when it is barred by limitation. Even though the provision of CPC cannot be applied strictly to the proceedings initiated under the Consumer Protection Act, in the Act, Section 24-A is introduced by virtue of an Amendment under the Act of 50/1993, wherein, a period of limitation is incorporated for admission of complaint.
In as much as Section-24-A is incorporated in the Consumer Protection Act, in the absence of any valid reasons adduced by the proposed party herein, we are of the opinion that the District Forum ought not have impleaded the proposed party.
7. Accordingly, the Revision Petition is allowed and the Order of the District Forum is set aside.
PON GUNASEKARAN N. KANNADASAN MEMBER-I PRESIDENT Sv//d/nkj/