Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member), upheld the State Commission’s Majority Order with regard to alleged medical negligence.

The instant revision petition was filed against the Order by the U.P. State Consumer Disputes Redressal Commission, Lucknow.

Complainant had visited the SS Hospital, Varanasi (OP 1) for pain in his left knee. OP 2 examined the patient and suggested Arthroscopic removal of the loose bodies. Complainant alleged that instead of Arthroscopy, OP 2 performed an open operation. Another X-Ray was taken, wherein it was found that the loose bodies were still present.

Later, the complainant underwent the Arthroscopy procedure at Mumbai by the hands of Dr Anant Joshi and gradually his left knee started functioning normally.

What was the complainant aggrieved of?

Aggrieved by the careless and negligent treatment of the OPs, the complainant filed the consumer complaint before the District Forum.

The District Forum allowed the complaint and ordered OPs to pay compensation of Rs 2,30,000 jointly and severally to the complainant.

Further, on an appeal being filed before the State Commission, OP’s were ordered to pay compensation of Rs 4,37,965 by the minority order but the majority order allowed the appeal and set aside the District Forum’s Order.

Again on being aggrieved by the State Commission’s Order, the instant revision petition was filed.

Analysis & Decision

Bench stated that it is an admitted fact that Dr S.C. Goel preferred open operation during the time of procedure instead of Arthroscopy.

As per the operative notes, it was the case of degenerative changes in the left knee joint and the four loose bodies were seen during Arthroscopy and their sizes were 1.5, 1.25, 1 & 1 cm. A large body of more than 5 mm size is difficult to be removed by Arthroscopy. Therefore, the Opposite Party No. 2 preferred open surgery. Moreover, admittedly, the patient before the operation was informed that if the Arthroscopy was not successful, open surgery would be done.

Hence, in view of the above, nothing amounts to negligence in the present matter.

The commission relied on the Supreme Court’s decision in Jacob Mathew, (2005) 6 SCC 1 wherein it was held that,

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

Coram held that Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation.

A medical error is only considered “negligent” if the healthcare practitioner has failed to take “reasonable care”.

It was noted in the present case through the medical records of the patient that it was the patient’s misconception that despite the advice of Arthroscopy,  OP 2 performed open surgery.

Hence, the State Commission’s Order had no jurisdictional error, or a legal principle ignored or miscarriage of justice. [Anil Kumar Gupta v. Banaras Hindu University, 2020 SCC OnLine NCDRC 462, decided on 05-10-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: An Application for leave to appeal under and in terms of Article 127 and 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka read with Section 5(c) of the High Court of Provinces (Special Provision) Act, 2006 was entertained by a Full Bench of Buwaneka Aluwihare PC, LTB Dehideniya and S. Thurairaja, JJ.

In the instant application, the question referred was, as to whether the cause of action for malicious prosecution, following the death of the plaintiff abates or whether it is permissible for the plaintiff’s heirs to be substituted in his room and place. A case of malicious prosecution was filed by the plaintiff and the same was dismissed by District Judge, aggrieved by which plaintiff filed an appeal in the High Court during which he passed away. The legal heir of the plaintiff filed an application for substitution as a party to the said suit, to which the respondent raised a preliminary objection on the basis that the cause of action, being an action based on personal nature, cannot survive after the death of the plaintiff.

The respondent contended that petitioners would have been bestowed with the right to be substituted in place of the deceased plaintiff as his legal representatives, only had there been a judgment in favor of the plaintiff at the time of his death, since the action of the plaintiff is an action in personam i.e. a personal action.

The counsel for the petitioners submitted that the action, even though of a personal nature, survives as the stage of litis contestatio had been reached.

As per SriLankan laws Section 392 CPC, “the death of the plaintiff or defendant shall not cause the action to abate if the right to sue on the cause of action survives.” In order to decide whether the petitioners can be substituted in the room and place of the plaintiff, it has to be first determined whether or not the action in question is extinguished by the death of the original plaintiff. Substitution can take place only if the action survives the death of the plaintiff.

The Court, observed that at the time of the plaintiff’s death, apart from the issuing of notices to the Respondents, no further pleadings had taken place in the present Leave to Appeal Application. Therefore, the pleadings that had to be considered for the present purposes are those that took place at the District Court. There is no repugnance in such construction as it is common ground that an Appeal is not an independent action severed from the original action. Further, it was held, “As the exceptional circumstance of litis contestatio has been reached by the conclusion of the pleadings at the District Court, there is no impediment to the survival of the action. Therefore, the right to sue on the cause of action survives, and as such, I hold that the substitution of the deceased Plaintiff Appellant-Petitioner is permissible.”[W.L.M.N. De. Alwis v. Malwatte Valley Plantations Ltd., 2019 SCC OnLine SL SC 7, decided on 21-06-2019]

Case Briefs

Securities and Exchange Board of India (SEBI): A single member bench comprising of Satya Ranjan Prasad, Adjudicating Officer ordered to abate the adjudication proceedings initiated against the noticee, since deceased.

The SEBI had initiated adjudication proceedings against the noticee – Prabir Chakravarti, Member of Board of Directors of Bhoruka Aluminum Limited (BAL). The adjudication was in pursuance of alleged violations of provisions of Section 12-A of the SEBI Act, 1992 read with Regulations 3 and 4(1) of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003; the violation alleged being in the matter of issue of Global Depository Receipts (GDR) issued by BAL. The investigations conducted revealed that BAL issued certain GDRs all of which were subscribed by Vintage FZE. The subscription amount was paid by Vintage FZE by a loan taken from European American Investment Bank AG. As a security towards the said loan, BAL pledged the GDR proceeds received from Vintage FZE. The resolution for the same was approved by the Board of Directors of BAL, and the noticee was a part of the said Board. It was alleged that the Board including the noticee herein who approved the resolution were parties to the alleged fraudulent scheme.

The Adjudicating Officer appointed under Section 15-HA of the Act issued a show cause notice to the noticee in terms of Rule 4 of the SEBI (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officers) Rules, 1995 read with Section 15-I of the Act. However, the notice returned undelivered and it was informed that the noticee had passed away, a copy of his death certificate was also filed. The Adjudicating Officer noted that the noticee had expired even before the initiation of instanct proceedings against him. It was observed that actions where the relief sought is personal to the deceased, the right to sue does not survive to or against the representatives and in such cases the maxim actio personalis moritor cum persona (personal action dies with death of the person) would apply. Accordingly, the proceedings against the noticee, since deceased, were ordered to stand abated. The proceedings were, thus, disposed of without going into merits of the case. [Global Depository Receipts Issue of Bhoruka Aluminum Ltd., In re, Adjudication Order No. ORDER/SRP/HKS/2018-19/1188, dated 23-08-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., dismissed a writ petition filed against the order of the trial Judge, whereby petitioner’s application seeking abatement of partition suit on the ground of death of one of the defendants was rejected.

The main issue that arose before the Court, in this case, was ‘whether the suit can be abated in case of death of either party.’

The High Court observed that Order 22 Rule 1 CPC specifically states that the suit cannot be abated on account of death of either party if the right to sue still survives. There are different procedures given under Rules 1, 2 and 4 of Order 22 CPC which talk about the death of a party, death of one of several plaintiffs or defendants but survival of right to sue and death of one of several defendants or of sole defendant respectively.

The Court held that from a bare perusal of different provisions laid down under Order 22  CPC, it can be reasonably concluded that in cases where either of the party dies but the right to sue survives, there shall be no abatement of suit. Observing that the case of the petitioner falls within the ambit of Order 22 Rule 1, it was held that the application of the petitioner for abatement of the suit had been rightly rejected by the lower court. Hence, the writ petition was dismissed. [Radhu Napit v. Tarapdo Napit,   2018 SCC OnLine Jhar 635, dated 16-07-2018]