National Consumer Disputes Redressal
Mrs. Janak Kumari vs Dr. Balwinder Kaur Nagpal & Anr on 17 January, 2003
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2146 OF 2002 (From the order dated 15.7.02 in Appeal No.166/99 of the State Commission Punjab) Mrs. Janak Kumari Petitioner Vs. Dr. Balwinder Kaur Nagpal & Anr. Respondents BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER. HONBLE MR. JUSTICE K.S. GUPTA, MEMBER Right to sue tort not an actionable claim a mere right to sue cannot be transferred - Section 6 of Transfer of Property Act, 1882 - no right passes to legal heirs when alleged negligence did not result in death. O R D E R
DATED THE 17th JANUARY, 2003.
JUSTICE D.P. WADHWA, J.(PRESIDENT) Mrs. Janak Kumari filed a complaint against the respondents-opposite parties, doctor and the Insurance company, alleging medical negligence in her treatment. She claimed damages. Her complaint was dismissed by the District Forum. During the pendency of the complaint Janak Kumari died not because of alleged medical negligence by the respondent-doctor but on account of some other cause. Her legal representatives her children and husband were substituted in her place. After dismissal of the complaint legal representatives of Janak Kumari filed appeal in the Punjab State Consumer Disputes Redressal Commission which was again dismissed. Against that order of dismissal legal representatives of Janak Kumari filed this petition.
In view of the concurrent finding by both the District Forum and the State Commission we do not find it is a case where we should exercise our jurisdiction under clause (b) of Section 21 of the Consumer Protection Act.
However, a question was raised when the revision came up for admission and it is as under:
In this case, Mrs. Janak Kumari filed a complaint on account of medical negligence in giving treatment to her by the Respondent. Unfortunately, during the pendency of the complaint, she died. Her legal heirs continue with complaint. The question that arises for consideration is that if the right to sue survives after the death of the Complainant. Counsel for the Petitioner wants time to study the law on the subject. To be listed on 17.1.03.
There is a well known Latin maxim which means that a personal action dies with the death of the claimant.
Mr. Vikram Chaudhri , learned counsel for the petitioner has been unable to satisfy us as to how legal representatives of Janak Kumari, since deceased could have been impleaded when the cause of action arose out of alleged tortuous liability as it is alleged that there was negligence on the part of the doctor operating Janak Kumari. We may, however, refer to the definition of the term actionable claim as given in Section 3 of the Transfer of Property Act, 1882 which is as under:
actionable claim means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent:
Right to sue is certainly not actionable claim and whether right to sue can be transferred we may refer to Section 6 of the Transfer of Property Act. Relevant provision of Section 6 is as under:
6.
What may be transferred:-
Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force, -
(a) ..
(b) ..
(c) ..
(d)
(e) A mere right to sue cannot be transferred.
(f) ..
(g) ..
(h) .
(i) .
It is quite settled law that claim for unliquidated damages for any tortuous liability is a mere right to sue which cannot be transferred. We wished we had been shown some judgments taking a view favouring the petitioner or otherwise.
Accordingly, this petition is dismissed.
J (D.P. WADHWA) PRESIDENT (RAJYALAKSHMI RAO) MEMBER (B.K. TAIMNI) MEMBER
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J (K.S. GUPTA ) MEMBER