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Vijayalakshmi v. Saraswathi
Factual and Procedural Background
The revision petition challenges the order dated 27.02.2023 passed by the District Consumer Disputes Redressal Commission (DCDRC), Tiruppur, in CMP No.106 of 2022 in C.C. No.130 of 2022. The original consumer complaint was filed by the first respondent alleging medical negligence by the deceased dentist, Dr. Manoharan, specifically that on 27.07.2016 he extracted a wrong tooth causing painful complications and mental agony. After the death of Dr. Manoharan, the complainant sought to implead Dr. Vidyalakshmi (the daughter of the deceased), along with his son Rajkumar and wife Savitri, as legal representatives (LRs) of the deceased in the complaint. The District Forum allowed impleadment only as against Dr. Vidyalakshmi, holding she had assisted the deceased during treatment, but dismissed the petition against Rajkumar and Savitri. The revision petitioner, Dr. Vidyalakshmi, challenged this order before the Tamil Nadu State Consumer Disputes Redressal Commission.
Legal Issues Presented
- Whether a cause of action for medical negligence against a deceased medical professional survives against his legal representatives before adjudication of the core issue on negligence.
- Whether the revision petitioner, Dr. Vidyalakshmi, can be impleaded as a legal representative on the basis of alleged assistance to the deceased dentist during treatment without specific averments or material linking her to the complaint.
- Whether the impugned order of impleadment passed by the District Forum is legally sustainable given the facts and pleadings.
Arguments of the Parties
Revision Petitioner's Arguments
- After marriage in 2005 to Dr. Vijayanand, also a dentist, the revision petitioner settled in Ambattur and practiced dentistry along with her husband at their own clinic, managing administrative work.
- It is baseless to allege that she assisted the deceased dentist in the treatment that led to the complaint.
- The complaint specifically attributes negligence only to the deceased dentist; therefore, impleading the revision petitioner is improper.
- The cause of action extinguishes upon the death of the only opposite party; instead of impleading others, the complaint should have been dismissed.
- The District Commission's order allowing impleadment is erroneous both on facts and in law and must be set aside.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court analyzed the matter by first noting that the allegation of medical negligence was specifically against the deceased dentist alone. The complaint contained only a general averment that an assistant doctor administered a pain-killer injection, without specifically identifying the revision petitioner as that assistant. The complainant attempted to introduce Dr. Vidyalakshmi as the assistant doctor only in the CMP petition, which was self-serving and not supported by the complaint or independent material. The court accepted the revision petitioner's submission that she had been practicing with her husband at a separate clinic and was not involved in the treatment related to the complaint. The court emphasized the settled legal principle that a cause of action for medical negligence is purely personal against the medical professional and does not survive against the legal representatives unless a decree had already been passed against the deceased. Since the deceased died before adjudication, the cause of action was extinguished, and there was no legal basis to implead the revision petitioner. The District Forum's order was found to be based on extraneous and unsubstantiated claims and was thus unsustainable.
Holding and Implications
The Revision Petition is ALLOWED by setting aside the impugned order dated 27.02.2023 passed by the DCDRC, Tiruppur, in CMP No.106 of 2022 in C.C. No.130 of 2022. The District Commission is directed to expeditiously dispose of the original consumer complaint in accordance with the observations made in this order.
The direct effect is that the revision petitioner shall not be impleaded as a legal representative in the complaint. No new precedent was set beyond reaffirming the settled legal position that medical negligence claims do not survive against the legal representatives of a deceased medical professional before adjudication.
IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: Hon'ble Thiru Justice R.SUBBIAH ... PRESIDENT R.P. No.78 of 2023
(Against the Order, dated 27.02.2023 passed in CMP No.106/2022 in C.C. No.130/2022 on the file of the DCDRC, Tiruppur)
Orders, dated:31.08.2023
Dr. Manoharan (Deceased),
Represented by his Legal Heir,
Dr. Vidyalakshmi,
W/o. Dr. Vijayanand &
D/o. Late Dr. Manoharan,
No.1005, Lake Dugar Apartment,
Kallikuppam,
Ambattur,
Chennai - 600 053.
… Revision Petitioner / 2ndRespondent / Proposed Opposite party.
- Versus -
1. Saraswathi, W/o. Jaheer Hussain, Door No.46, Kottur Road, Sooleswaranpatti, Pollachi Taluk,
Coimbatore District. … 1stRespondent /Petitioner /Complainant.
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2. Dr. Manoharan (Deceased), Represented by her Legal Heir, Savithri,
W/o. Late Dr. Manoharan, No.81, Venkatraman Street, Pollachi.
3. Rajkumar, S/o. Late Dr. Manoharan, No.81, Venkatraman Street, Pollachi.
… Respondents 2 & 3 / Respondents 3 & 4 / Proposed Opposite parties. For Revision Petitioner /
2ndRespondent / Proposed Opposite party : M/s. K. Surendar 1stRespondent /Petitioner /Complainant : Served called absent Respondents 2 & 3 / Respondents 3 & 4
/ Proposed Opposite parties : Notice dispensed with This Revision Petition is listed today and, after hearing the arguments of the counsel for the Revision Petitioner upon perusing the materials on record, this Commission passes the following:-
O R D E R
R.Subbiah, J. - President. (Open Court)
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Challenge in this Revision is to the order, dated 27.02.2023, passed in CMP No.106 of 2022 in C.C. No.130 of 2022, by the DCDRC, Tiruppur, in impleading the revision petitioner as the LR of the deceased Opposite Party/Dr.Manoharan against whom the 1strespondent herein, as complainant, filed the Consumer Complaint before the District Commission.
2. The 1strespondent herein filed the above Consumer Complaint, alleging medical negligence against Dr.Manoharan/Dentist on the ground of 'Never Event' that, on 27.07.2016, he had extracted out a wrong tooth, resulting in painful complications, mental agony, etc. to her. Pending complaint, the said Dentist / OP / Dr.Manoharan died and thereupon, the complainant filed CMP No.106 of 2022, seeking to implead Dr.Vithyakshmi, who is the daughter of the deceased-OP and also his son and wife by name Rajkumar and Savitri, as the LRs of late Dr.Manoharan. The said petition was opposed by the proposed parties.
The District Forum, by the impugned order, dated 27.02.2023, dismissed the petition as against Rajkumar and Savitri, however, allowed it against Dr.Vithyalakshmi by holding that, at the time of treatment, she had assisted the deceased OP. Seeking to set aside the said order of impleadment, the petitioner has approached this Commission by way of this Revision.
3. Despite notice through paper publication, R1 has not come forward to contest the Revision and she remained absent.
4. The main contention of the revision petitioner is that, after her marriage on 27.06.2005 with one Dr.Vijayanand, who is also a Dentist, both of them settled in Ambattur, Tiruvallur District, and since then, she has been practising along with her husband and looking after the administrative works of their own clinic run at Ambattur in the name of S.S. Multispecialty Dental Centre. Therefore, it is absolutely baseless to state that the Revision Petitioner had assisted the deceased Dentist in the course of extracting out the teeth of the complainant. Further, the allegation in the complaint is very specific to the deceased OP that he alone was responsible for the Never Event; while so, when there is no scope at all for arraying the revision petitioner, instead of dismissing the main complaint itself as the cause of action for its continuance is completely extinguished, the District Commission has passed the impugned order which is erroneous both on facts and in law and hence, the same is liable to be set aside.
5. Having considered the submissions of the revision petitioner and on perusing the materials made available, this Commission is of the view that the impugned order of impleadment is liable to be set aside for more than a couple of reasons.
Firstly, the allegation of medical negligence made in the whole complaint is specific only against the deceased dentist/OP-late Manoharan.
Secondly, at para No.4 of the complaint, it is only stated that the pain-killer injection was administered by an Assistant Doctor of the deceased OP. Such a general averment does not lead one to any plausible conclusion that the said Assistant Doctor was the Revision Petitioner-Dr.Vithyalakshmi. While so, when it has not been specifically averred in the complaint that the Assistant Doctor was the revision petitioner, the complainant cannot be permitted to set out or introduce a new case which she has not made in the complaint, with a view to prosecute her complaint that has lost its cause of action upon the demise of the only OP. Even otherwise, the complainant herself did not allege anything against the Assistant Doctor in terms of service deficiency or negligence. Only for the first time in the CMP, the complainant has introduced and projected Dr.Vithyalakshmi as the Assistant Doctor. Such an obvious self-serving claim cannot be given any face value at all. In the given factual circumstances, the case of the revision petitioner that, after her marriage with a Dentist, she had settled at Ambattur in Tiruvallur District, practising along with her husband in their Own Clinic and also looking after the administration of the said Clinic, cannot be so slightly ignored.
Thirdly, there is no independent material adduced by the complainant to link the Revision Petitioner in any way with the alleged wrong tooth extraction done by the deceased.
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However, the District Forum, without properly appreciating the facts and sifting the documents, has merely acted upon the self-serving and extraneous claim of the complainant that the Revision Petitioner had assisted the deceased-OP for which there is no basis at all and proceeded to implead the revision petitioner as a party and such an erroneous order cannot be legally sustained.
6. It is settled legal position that, in cases of medical negligence, the cause of action is purely personal against the Medical Professional, who is alleged to have been negligent in discharging his/her duties and that, upon his/her death, the cause of action does not survive against his/her estate or the Legal Representatives. It is only in cases where the trial had been completed and a decree had already been passed against the deceased Doctor, the amount payable under the decree could be recovered from the estate of the deceased and, in such an event, the legal representatives of the deceased could be brought on record, which has not happened in the present instance. In this case, before even adjudicating the core issue in the consumer proceedings as to whether the deceased was negligent in providing medical care, he died and thereby, the cause of action itself is completely extinguished. As such, there is no useful purpose in keeping the complaint itself pending anymore.
7. In the result, the Revision Petition is allowed by setting aside the impugned order, dated 27.02.2023, passed by the DCDRC, Tiruppur, in CMP No.106 of 2022 in C.C. No.130 of 2022. Consequently, the District Commission is directed to expeditiously dispose of the Complaint in line with the observations made in this Order.
R.SUBBIAH, J. PRESIDENT.
ISM/TNSCDRC/Chennai/Orders/AUGUST/2023.
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