National Consumer Disputes Redressal
Sarvesh Kumar Singh & 2 Ors. vs Kailash Healthcare Hospitals & 2 Ors. on 1 July, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 146 OF 2018 (Against the Order dated 22/11/2017 in Complaint No. 140/2014 of the State Commission Delhi) 1. SARVESH KUMAR SINGH & 2 ORS. S/O. LATE RAM CHANDRA SINGH.
R/O. J-101, BETA-II. GREATER NOIDA. U.P. 2. MS. AVANTIKA. D/O. SH. SARVESH KUMAR SINGH.
THROUGH SH. SARVESH KUMAR SINGH.
R/O. J-101, BETA-II. GREATER NOIDA. U.P. 3. MASTER ARPIT. S/O. SH. SARVESH KUMAR SINGH.
THROUGH SH. SARVESH KUMAR SINGH.
R/O. J-101, BETA-II. GREATER NOIDA U.P. ...........Appellant(s) Versus 1. KAILASH HEALTHCARE HOSPITALS & 2 ORS. TROUGH ITS CHAIRMAN AND MANAGING DIRECTOR.
R/O. A-11, NEW ASHOK NAGAR. DELHI-110096 2. KAILASH HOSPITAL. THROUGH ITS MANAGING DIRECTOR.
H-33, SECTOR-27. NOIDA-201301 U.P. 3. DR. S.K. SRIVASTAVA (MS), GI SURGEON. KAILASH HOSPITAL, H-33, SECTOR-27. NOIDA-201301. U.P. ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Appellant : Mr. Arvind Pandey, Advocate
with Appellant No. 1 in person For the Respondent : Mr. Alok Krishan Agarwal, Advocate
Mr. Ramnesh Jerath, Advocate
Dated : 01 Jul 2019 ORDER
HON'BLE MR. DINESH SINGH, MEMBER
1. The question before us is whether or not the complaint falls within the territorial jurisdiction of the State Commission at Delhi.
2. On 13.05.2019, after hearing learned counsel for both sides, and after perusing the material on record, and after the due consideration, we recorded the sum and substance of our considered view in the daily Order:
Dated : 13.05.2019
ORDER
Heard the learned counsel for both the sides.
Perused the material on record.
The appeal is dismissed.
Reasoned judgment to follow.
Meanwhile, the liberty provided by the State Commission to the complainants "to approach the appropriate Fora to seek their remedy" remains unaffected.
3. We are giving our reasoned decision hereinafter.
4. The State Commission at Delhi, vide its impugned Order dated 22.11.2017, held that the complaint cannot be entertained in the State Commission at Delhi and returned the complaint for filing it before the forum having the territorial jurisdiction:
Shri Sarvesh Kumar Singh and others have filed this complaint before this Commission, for short complainants against Kailash Health Care Hospital and others, hereinafter referred to as OPs, alleging medical negligence leading to the death of his wife causing disruption in the entire family as the deceased is survived by two infant children apart from her husband, the complainant herein.
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The hospital of the OP is at Noida. The cause of action in the matter arose at Noida where the treatment was done to the wife of the complainant. For this purpose whether this commission has a territorial jurisdiction or not, we may advert to provisions of Section 17(2) of the Consumer Protection Act. The said provision of law posits at under:-
17{(2)A complaint shall be instituted in a State Commission within the 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 State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be acquiesce in such institution, or c) the case of action, wholly or in part, arises.}
On perusal of the provision of the act it is manifestly clear that there are two important components to arrive at a conclusion regarding territorial jurisdiction of the Commission, namely,
(i) the place where the OP resides or works for gain; and, secondly,
(ii) where cause of action arose.
The ld. Counsel for the complainant has drawn our attention to the written statement filed by the OP raising no objection with regard to their averment to the effect that this Commission enjoys the territorial jurisdiction. To put it differently his argument is that once the OP has not raised any objection to the territorial jurisdiction of this Commission in their written statement, they are estopped raising this point at the time of the final arguments of the case.
We do not agree with the submission of the complainant as agreement between parties can not determine the territorial jurisdiction of the juridical fora.
The Hon'ble NCDRC in Neha Singhal vs. Unitech Ltd. II(2011) CPJ 88 (NC) has held as under:-
"Agreement between parties cannot oust original jurisdiction to defeat the purpose and object of the Act".
The ld. Counsel for the complainant had also argued that the Head Office of the OP being in Delhi, this Commission enjoys the territorial jurisdiction. In our view the place where the cause of action arose is also to be taken into account.
Their Lordship in the Hon'ble Supreme Court in the matter of Sonic Surgical vs. National Insurance Co. Ltd. IV (2009) CPJ 40 (SC) have also held as under:-
"Branch Office under Section 17 (2) of the Consumer Protection Act 1986 means branch office where cause of action arose".
The Hon'ble NCDRC in Melanie Das vs. Royal Sundram Alliance Insurance Co. Ltd., I (2014)CPJ 302 (NC) has held as under:-
"Mere existence of branch office of company would not ipso facto be determinative of territorial jurisdiction of State Commission. Cause of action must also arise at that place".
The Hon'ble NCDRC in New India Assurance Co. Ltd. vs. Lasa Footwear IV(2012) CPJ 821 (NC) has held as under:-
"Expression branch office in the amended Section 17(2) would mean the branch office where cause of action has arisen. Provisions of Section 17(2) (b) & 11(2)(b) of the Consumer Protection Act 1986 are pari meteria."
The Hon'ble NCDRC in Bhaiya Ram Sahu vs. Vipin Jain in FA 12/183, decided on 18.10.12. The State Commission Chattisgarh held that "Location of registered office is not sufficient to confer jurisdiction on district forum. Cause of action must also accrue to determine the territorial jurisdiction.
The cause of action in the given case has arisen at Noida, an important component for reaching to a conclusion regarding territorial jurisdiction. We are accordingly of the considered view that the objection raised by the OP to this effect is just and proper and therefore the complaint cannot be tried and entertained in this commission at Delhi for want of territorial jurisdiction . We accordingly order return of the complaint for filing it before the Fora enjoying the territorial jurisdiction.
Ordered accordingly.
However we reserve the rights of the complainants to approach the appropriate Fora to seek their remedy if so advised. They may take the advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works vs. PSG Industrial Institute (1995) 3 SCC 583 to seek exclusion of the time spent in prosecuting the complaint before the Commission.
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(extracts from the State Commission's impugned Order)
5. We may first note the array of the parties in the instant complaint:
Complainants:
No. 1. Sh. Sarvesh Kumar Singh No. 2. Ms. Avantika d/o Sh. Sarvesh Kumar Singh through Sh. Sarvesh Kumar Singh No. 3. Master Arpit s/o Sh. Sarvesh Kumar Singh through Sh. Sarvesh Kumar Singh Opposite Parties:
No. 1. Kailash Healthcare Hospitals Through its Chairman & Managing Director having its Registered Office, at A-101, New Ashok Nagar Delhi - 110096 No. 2. Kailash Hospital Through its Managing Director H-33, Sector 27, Noida 201301, U.P. No. 3. Dr. S. K. Srivastava (MS) GI Surgeon Kailash Hospital H-33, Sector 27, Noida 201301, U.P.
6. We may also quote the following for ready reference:
section 17(2) of the Act 1986:
Jurisdiction of the State Commission.
17(2) A complaint shall be instituted in a State Commission within the 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 State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
section 20 of the CPC:
20. Other suits to be instituted where defendants reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction -
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation.- A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
7. To put it in simple language, the complainants are agitating that the word "or" in sub-section 2(a) and in sub-section 2(b) of section 17 of the Act 1986 enables them to file their complaint before the State Commission at Delhi since the opposite party no. 1 head office is located at Delhi.
8. It is admitted that the opposite party no. 1 is the head office of the opposite party no. 2 hospital and is located at Delhi.
It is also admitted that the incident of alleged medical negligence took place in the opposite party no. 2 hospital which is located at Noida, U.P. And accordingly the cause of action arose at Noida, U.P. It is further admitted that the opposite party no. 3 doctor was working at the opposite party no. 2 hospital located at Noida, U.P. when the incident of alleged medical negligence took place.
9. The word "or" contained in sub-section 2(a) and in sub-section 2(b) of section 17 could albeit be interpreted to mean that the complaint can be instituted either where the opposite party no. 1 head office is located i.e. Delhi or where the opposite party no. 2 hospital is located i.e. Noida, U.P. or where the cause of action arose i.e. Noida, U.P.
10. However, an absurd interpretation, drawn mechanically, without application of mind, without reason and logic, can not be made.
11. Hypothetically, for the sake of discussion, if the word "or" in sub-section 2(a) and in sub-section 2(b) of section 17 is interpreted in such manner, as in para 9, and as argued by the learned counsel for the complainants, and an incident of alleged medical negligence takes place at a particular hospital situated at a particular location, and accordingly the cause of action arose at that particular location, and the said hospital is one of a chain of several hospitals located all over the country, and its head office is situated at one particular location, it would imply that a complaint can be instituted in any of the locations across the country in which any of the chain of hospitals and / or its head office is located, with total disregard to where the cause of action arose.
To readily see the consequences of such absurd interpretation, if a chain of several hospitals is located from say Kashmir to Kanyakumari, and the incident of alleged medical negligence takes place in a hospital located at say Kanyakumari, and accordingly the cause of action also arose at Kanyakumari, and another hospital of the same chain is located at Kashmir, and a number of other hospitals of the same chain and its head office and branch offices are situated in a number of locations across the country, a complaint can be made in the State Commission having territorial jurisdiction over any of the said 'n' number of locations from Kashmir to Kanyakumari, with total disregard to where the cause of action arose.
Such absurd interpretation would lead to an absurd situation, with added malefics of both harassment and bench-hunting.
12. In such facts, as in the case at hand, the word "or" in sub-section 2(a) and in sub-section 2(b) of section 17 is meant to benefit the complainant in that [a] the opposite parties, if their head office is situated at a different location from the location where the incident of alleged medical negligence took place and where the cause of action arose, do not insist that the complaint be made in the State Commission having territorial jurisdiction over the location where its head office is situated and [b] there is no impediment for the complainant to make his complaint in the territorial jurisdiction of the State Commission where the incident of alleged medical negligence took place and the cause of action arose.
The purpose is to avoid trouble to the complainant in making his complaint at a different State Commission, than the State Commission within whose territorial jurisdiction the incident of alleged medical negligence took place and the cause of action arose.
13. The interpretation of the word "or" in sub-section 2(a) and in sub-section 2(b) in section 17 has to be made with reason and logic, with the due application of mind, without leading to absurdity.
14. In the instant case the hospital where the incident of alleged medical negligence took place (opposite party no. 2) is located at Noida. The cause of action arose at Noida.
To overlook these material facts, most significantly to overlook where the incident of alleged medical negligence took place and where the cause of action arose, and to make an absurd interpretation of the word "or" in sub-section 2(a) and in sub-section 2(b) of section 17, is erroneous.
15. Notwithstanding that the section 20 of the CPC is not applicable to the Act 1986, and (in its stead) section 17 has been incorporated in the Act 1986, we but note that the section 17 of the Act 1986 is similar in content and nature to the section 20 of the CPC.
And notwithstanding that an Explanation, similar to the Explanation to section 20 of the CPC, is not contained in section 17 of the Act 1986, we but also note that an Explanation is not a substantive provision, it does not add to or subtract from the substantive provision, and is but meant to explain and clarify the substantive provision so as to make it unambiguous and unequivocally clear.
While not in any manner saying, implicitly or explicitly, that the section 20 of the CPC or the Explanation thereto is as such applicable to the Act 1986, or that section 20 of the CPC supersedes or substitutes section 17 of the Act 1986, we find it to be within reason and logic to draw from the principles and rationale contained in the Explanation to section 20 of CPC, to arrive at a reasonable and logical interpretation of the word "or" in sub-section 2(a) and in sub-section 2(b) of section 17 in respect of the case at hand.
16. In the light of the above discussion, and considering that the opposite party no. 2 hospital where the incident of alleged medical negligence took place is located at Noida U.P., and most significantly that the cause of action arose at Noida U.P., and also that the opposite party no. 3 doctor was working at the opposite party no. 2 hospital located at Noida U.P. when the incident of alleged medical negligence took place, we find no reason to disagree with the State Commission at Delhi that, in the case at hand, the territorial jurisdiction does not vest in the State Commission at Delhi.
17. We may clarify that in the facts of the case the territorial jurisdiction vests with the State Commission at Lucknow.
The complainants may, thus, file their complaint before the State Commission at Lucknow.
18. We may also make it explicit that, after filing their complaint before the State Commission at Lucknow, the complainants, if they so wish, are free to move an appropriate application before this Commission under section 22 B of the Act 1986 for transfer of the complaint to any other State Commission (including the State Commission at Delhi), which, if filed, will be considered on merit as per the law.
19. We further clarify that we find no error in the array of the parties, that is, the head office as one opposite party (no. 1), the hospital where the incident of alleged medical negligence took place as one opposite party (no. 2) and the concerned doctor as one opposite party (no. 3). Specifically, the liability of the head office (opposite party no. 1), if the alleged medical negligence is determined on merit, is not precluded.
20. We furthermore clarify that the cause of action arose on 27.06.2013 when the wife of the complainant no. 1 expired in the opposite party no. 2 hospital due to the incident of alleged medical negligence. The complaint was filed before the State Commission at Delhi on 24.03.2014. Accordingly the complaint was within the limitation period prescribed under section 24 A of the Act 1986.
The time spent in pursuing the complaint before the State Commission at Delhi and before this Commission (till the date of pronouncement of this Order) shall be excluded for the purpose of counting limitation, if the complainants file their complaint before the State Commission at Lucknow.
21. It goes without saying that the complainants have both options, one, to seek remedy in a competent civil court, and, two, to seek the additional alternative remedy under the Act 1986 (ref.: section 3) before the State Commission at Lucknow, as per the law.
And the complainants can also agitate their case before any concerned regulatory or other competent authority.
22. But intransigently agitating that in the light of the word "or" being contained in sub-section 2(a) and in sub-section 2(b) of section 17 their complaint falls within the territorial jurisdiction of the State Commission at Delhi is erroneous, and as such cannot be acceded to.
23. The first appeal is dismissed, with the above observations (paras 16 to 21).
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER