In a couple of appeals filed before the Supreme Court by the wife and son of the alleged medically negligent doctor (deceased) against an order dated 26-05-2010 passed by the National Consumer Dispute Redressal Commission, New Delhi (NCDRC), whereby an application filed by the complainant (deceased) seeking substitution of the legal heirs of the doctor, pending revision, and directing them to be brought on record was allowed, a Bench comprising Justice J.K. Maheshwari and Justice Atul S. Chandurkar remitted the matter to NCDRC and restored the revision petition to its original number while setting aside the impugned orders.
A review filed was also dismissed with an observation that the legal heirs would be liable to satisfy the decretal amount to the extent payable from the estate left behind, upon conclusion of the proceedings.
The complainant submitted before the District Forum, Munger, Bihar, that he consulted the appellant (deceased) at his private clinic on 10-02-1990, as her wife was suffering from severe pain in her right eye. After examination, the appellant advised immediate operation, which was done on 11-02-1990, but the pain reoccurred on 16-03-1990, upon which she was taken back to the appellant doctor. Despite further treatment, there was no relief.
The complainant consulted other doctors but found no relief, and then consulted a doctor at Shankar Netralaya, Madras. The doctor informed the complainant that his wife had already lost vision in her right eye because of the wrong treatment and operation, which could also affect the vision in her left eye. Thereafter, the wife’s left eye was operated on 05-05-1994, and thereafter, the complainant had to visit Madras multiple times since his wife’s treatment continued till 05-08-1997.
A consumer complaint under the Consumer Protection Act, 1986, was filed on 13-08-1997 against the appellant for alleged deficiency in service, claiming a total compensation of Rs. 4,50,000/-. The District Forum held the doctor negligent for deficiency in service and liable to pay Rs. 2,60,000/- within three months. Aggrieved, the complainant, as well as the present appellant, filed appeals before the State Consumer Disputes Redressal Commission, Patna, Bihar (SCDRC).
By a common order, the appeal by the complainant was dismissed, while the appellant’s appeal was allowed, and the District Forum’s order was set aside. SCDRC noted that the wife’s vision was lost due to glaucoma and was not curable even after the surgery done by the appellant. It was also stated that holding the doctor liable for medical negligence was not sustainable in the absence of expert evidence to substantiate it. Thereafter, the complainant preferred a revision petition before NCDRC assailing the said order, during the pendency of which the appellant passed away.
The complainant filed an application for substitution of legal heirs in the revision petition, and the same was allowed by the NCDRC on 26-05-2010, thereby substituting the present appellants as legal heirs. Both the wife and son filed applications under Order XXII, Rules 1 and 4, read with Section 151 of the Code of Civil Procedure, 1908 (CPC), seeking to have their names dropped from the proceedings. Meanwhile, the original complainant also died on 16-01-2014, whose legal heirs were substituted.
By an order dated 24-05-2018, NCDRC dismissed both applications and posted the matter for final hearing on 20-09-2018. Aggrieved, the present appeals were filed, and a stay on further proceedings was granted in December 2019.
The Court stated that this case may serve as a lesson for students and stakeholders to place a strong emphasis on legal history and jurisprudence. It was stated that the question to be considered was whether, upon the death of the doctor during the pendency of proceedings at the appellant stage, the legal heirs could be impleaded and held liable for the alleged act of the deceased doctor, and to what extent.
The Court referred to the legal maxim – action personalis moritur cum persona, and also noted certain nuances of the English law. The Court stated that the Consumer Protection Act, 1986, does not define ‘opposite party’, and after perusing Section 13 (7), said that in the event of the death of either consumer/complainant or the opposite party, Order XXII of the First Schedule to CPC shall apply. On a combined reading of Rules 2 and 4 of the Order, it was noted that the continuation of a suit would depend on whether the right to sue survives or not.
Upon comparing the 1986 Act to the 2019 Act, the Court found the legislative intent to be clear that the complainant’s claim should not automatically perish upon his death and should survive through his legal heirs. The Court referred to M Veeerappa v. Evelyn Sequeria (1998) 1 SCC 556 and stated that the exceptions under Section 306 of the Indian Succession Act, 1925, are meant to restrain the ambit of the enacting clause to particular cases. It was noted that two interpretations could be adopted, but the Court preferred the second interpretation, meaning that only the cause of action relatable to claims for personal injury is barred, and any claim against the property of the deceased may continue.
The Court stated that the right to sue mentioned under Order XXII Rule 2 and 4 has to be located under substantive law under Section 306 of the Succession Act. The Court was unable to locate a substantive provision in either the 1986 Act or the 2019 Act that would allow the continuation of such personal claims. The Court found it appropriate to engage policy experts to debate the need and necessity of expanding the scope of Section 306 of the Succession Act.
The Court summarised that the legal representative of the deceased can institute a fresh suit or be sued afresh as per the Legal Representatives Suits Act, 1855 or as per Section 306 of the Succession Act, and that the continuation of suit by or against the legal representative has to be as per Section 306.
The Court stated that what becomes essential at the relevant stage is to see whether any enforceable decree against the doctor existed on his date of death. The Court refused to subscribe to the ratio of NCDRC in Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital & Ors. 2001 (1) CPR 45, as the judgment was found erroneous because the said legal maxim was applied without having read the statutory modifications carried out by various enactments in India. It was noted that the ratio in Melepurath Shankunni Ezhuthassan v. Thekittil Geopalankutty (1986) 1 SCC 118 was also misread, and that the first category of exceptions under Section 306 was made absolute while extending the bar to claims of pecuniary loss against the estate as well.
The Court concluded that upon the death of the alleged medically negligent doctor, his/her legal heirs could be impleaded and brought on record. It was said that the extent of liability would be determined based on the pleadings and evidence. The Court said that since the doctor passed away during the pendency of the revision preferred by the complainant, NCDRC was duty-bound to adjudicate the negligence of the deceased doctor and the surviving claims. It was stated that the claimant had the duty to first establish the negligence of the deceased doctor and claims on the estate recoverable as per Section 306.
Additionally, the Court stated that only claims that are maintainable against the estate would have to be looked at, rather than personal claims that had elapsed with the death of the doctor. The matter was remitted to the NCDRC for adjudication within six months, and the impugned orders were set aside, restoring the revision petition to its original number. Thus, the appeals were disposed of.
Appearances:
For Petitioner – Ms. Sarvshree (AOR), Ms. Somyashree
For Respondents – Mr. Shyam Padman (Sr. Adv), Mr. Naresh Kumar (AOR), Mr. Gunnam Venkateswara Rao (AOR), Mr. Umesh Sinha, Ms. Shefali, Mr. Anil Kumar Singh, Ms. Himani Chhabra, Ms. Devyani Mahra, Mr. Jaimon Andrews, Ms. Piyo Harold Jaimon, Ms. Asiwathi Shyam, Ms. Firdousecp
Amicus Curiae – Mr. Raghenth Basant (Sr. Adv), Mr. Varun Kapoor
Other Appearances – Mr. Akshay Sahay (AOR), Ms. Bagavathy Vennimalai, Ms. Kaushitak Sharma, Ms. Hima Bhardwaj
