T.A. Augustine and Others Vs. Gautham Hospital, Rep. Its Managing Director, Dr. Jayachandran and Others

T.A. Augustine and Others vs Gautham Hospital, Rep. Its Managing Director, Dr. Jayachandran and Others

Type Court Judgment Court Kerala State Consumer Disputes Redressal Commission SCDRC Thiruvananthapuram Decided Mar 10, 2014

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Citation: sooperkanoon.com/1148146
Court: Kerala State Consumer Disputes Redressal Commission SCDRC Thiruvananthapuram
Judge: The Honourable Mrs. a. Radha, Member &Amp; the Honourable Mrs. Santhamma Thomas, Member
Decided On: Mar 10, 2014
Case Number: First Appeal No. 894 of 2012 (Arisen out of Order Dated 29/06/2009 in Case No. CC/07/310 of District Ernakulam)
Subject: Consumer

Case Summary

AI-generated summary - not the official court judgment text.

Consumer

Key legal issue: Consumer

Parties & Advocates

Appellant / Petitioner

T.A. Augustine and Others

Respondent

Gautham Hospital, Rep. Its Managing Director, Dr. Jayachandran and Others

Excerpt

.....and to give an opportunity to contest the case on merits. 4. the respondents counsel strongly objected in allowing the appeal as the case was already settled between the parties in o.p.no.82/2001. the parties came into a compromise and the 1st opposite party paid rs.1,75,000/- and rs.1,50,000/- by the 2nd opposite party and the case was compromised. at present after the death of the complainant the legal heirs of the deceased came up with a case of deficiency in service on the same subject matter. it is argued that in a valid compromise invariably the respective acts of each party must correspond to each other. in this case the acts of the parties are independent and have no co-relation. it is also argued that the complaint is barred by limitation and is devoid of merit. the complications of the operation incurred in 1998 and the death of the complainant in o.p.no.82/01 was in 2005. the complaint is filed on 11/10/2007. however, this was discussed elaborately in the order passed in i.a.no.42/08 in c.c.no.310/07. 5. now the dispute is with regard to the dismissal order in c.c.no.310/07 and this case was dismissed for default. at present we are not going into the merits of the case and we find that the order of dismissal of complaint is to set-aside and we find that an opportunity is to be given to the complainant to contest the case. in the result, appeal is allowed setting aside the order passed by the forum below and the forum is directed to give opportunity to the complainant to contest the case. the parties are to appear before the forum below on 21/04/2014. the office is directed to send a copy of this order to the forum below along with lcr.

Full Judgment

A. Radha : Member

This appeal is preferred by the complainant on dismissal of the complaint by the Forum Below. The complainant filed C.C.No.310/07 before CDRF, Ernakulam claiming compensation for negligence on the part of opposite party.

2. While contesting the case the complainant was absent for several postings and the complaint happened to be dismissed for default. Thereafter the complainant filed petition to set-aside the exparte order which was again dismissed by the Forum Below relying on the Honble Apex Court decision. As the Forum does not have the power to set-aside the exparte order the complainant came up before this Commission in Appeal.

3. It is submitted by the Counsel for the Appellant that there is no wilful laches on the part of complainant for being absent on the day of posting of the case. It is also submitted that the counsel was held up in traffic block and was unable to reach the Forum in time. The complainant is having a serious case with regard to the medical negligence of the opposite party and the dismissal of the complaint will certainly affect the complainant for not prosecuting the case properly. He also prayed to set-aside the order passed by the Forum Below and to give an opportunity to contest the case on merits.

4. The respondents counsel strongly objected in allowing the appeal as the case was already settled between the parties in O.P.No.82/2001. The parties came into a compromise and the 1^st opposite party paid Rs.1,75,000/- and Rs.1,50,000/- by the 2^nd opposite party and the case was compromised. At present after the death of the complainant the legal heirs of the deceased came up with a case of deficiency in service on the same subject matter. It is argued that in a valid compromise invariably the respective acts of each party must correspond to each other. In this case the acts of the parties are independent and have no co-relation. It is also argued that the complaint is barred by limitation and is devoid of merit. The complications of the operation incurred in 1998 and the death of the complainant in O.P.No.82/01 was in 2005. The complaint is filed on 11/10/2007. However, this was discussed elaborately in the order passed in I.A.No.42/08 in C.C.No.310/07.

5. Now the dispute is with regard to the dismissal order in C.C.No.310/07 and this case was dismissed for default. At present we are not going into the merits of the case and we find that the order of dismissal of complaint is to set-aside and we find that an opportunity is to be given to the complainant to contest the case.

In the result, appeal is allowed setting aside the order passed by the Forum Below and the Forum is directed to give opportunity to the complainant to contest the case. The parties are to appear before the Forum Below on 21/04/2014.

The office is directed to send a copy of this order to the Forum below along with LCR.

Same Court & Year Kerala State Consumer Disputes Redressal Commission SCDRC Thi... Same Parties T.A. Augustine and Others vs Gautham Hospital, Rep. Its Manag... Same Subject Consumer Same Judge The Honourable Mrs. a. Radha, Member &Amp; the Honourable Mrs...