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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