"Doctors are duty bound to attend Court cases through Advocates or on their own, irrespective of where the court situates". Adv. ROHiT ERANDE ©

 "Doctors are duty bound to attend Court cases through Advocates or on their own, irrespective of where the court situates".  

Adv. ROHiT ERANDE ©

An interesting case which emphasises the unnoticed, but very important amendment to CPA about Territorial Jurisdiction, where the Original Compliant was  filed in  Raipur, Chhattisgarh State Commission to the State Commission, Cuttak Odisha, as the Complainant shifted there for her further medical treatment !!

Before the Hon'ble NCDRC. 

TRANSFER APPLICATION NO. 1 OF 2021

MANASI MISHRA  V/s. AAYUSH HOSPITAL & MATERNITY HOME & 4 ORS.

BEFORE:  

  HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER

  HON'BLE MR. BINOY KUMAR,MEMBER

Facts in short :

1. This the simple Transfer Petition i.e. transfering  the original Complaint from the State Commission, Chhattisgarh to the State Commission, Odisha.

2. The Applicant / original Complainant is a lady, resident of Sambalpur (Odisha), filed Consumer Complaint No. 24/2019 before the State Commission, Raipur, Chhattisgarh, against the Opposite Parties for alleged medical negligence.

3. As the Complainant who is undergoing surgical treatment at AIIMS, Bhuvaneshwar for hernia, which she alleged to have developed  due to alleged negligence of the Opposite Parties Nos. 1 and 2. Till date, she underwent multiple surgeries and at present, for her daily needs, she has to depend upon somebody else. 

4. The Complinanant contended that she is unable to engage an Advocate at Raipur and unable to travel for 6 to 7 hours (300 kms) frequently to the State Commission at Raipur. Moreover, due to the current Covid-19 pandemic situation, it is risky and unsafe for her to travel and therefore requested to transfer the petition.

Défense against the Transfer Petition :

1. The learned Counsel for the Opposite Parties submitted that the Opposite Party No. 4 is a Senior Laparoscopic Surgeon and for the last 25 years, serving lot of patients in Raipur region. If the said Transfer Application is allowed, many patients will be deprived from his services. He further submitted that the other Opposite Parties doctors are running IVF Centre, wherein presence of doctor is essential during regular follow up and the crucial time bound procedures like ovarian stimulation, embryo formation and embryo transfer etc. Therefore, the absence of the Opposite Party No. 4, at relevant time can cause adverse effect and less success rate.

2. It was also tried to be contended that as the Consumer Protection Act  is a summary proceeding and there is no need of personal appearance for the Complainant and she can very well pursue her case before the State Commission, Raipur through her Counsel or Authorized Representative. Therefore, if the instant case is transferred, the four Opposite Parties have to travel from Raipur to the other place. 

Held :

1. It was held that the Doctors - Opposite Parties are running a Medical Centre for more than 2 decades. They have digitalization and communication facilities like wifi / internet which may be used for e-filing / virtual proceedings.  

2. It is true, though the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty bound to attend the court proceedings (physical or virtual mode) either though their Counsel or on their own. 

3.     This is the case of alleged medical negligence which needs holistic approach after giving fair opportunities to the parties on both the sides, instead of taking technical approach and the Commission was pleased to transfer the Compliant from Raipur, Chhattisgarh to he State Commission, Cuttak Odisha. 

This is very important order, though its not about any order on merits of Medical Negligence. Now as per amended CPA-2019, the Complainant can file a case where he/she resides or works for gain. This is very important change, which was not there in earlier Act. Generally a case has to be filed where the Defendant resides or carries out the business. But now, after increase in the pecuniary limit, this amendment to Territorial Jurisdiction has not been much discussed, but it will have greater impact. 

Though, it's the discretion of the Higher Courts to allow such rare petitions, always remember parties cannot confer jurisdiction even by mutual agreement. Jurisdiction always goes to the root of the matter and an order passed without a jurisdiction is a nullity. 

thanks and regards

Adv. ROHiT ERANDE

Pune. ©