G.BHARAT vs G.SARANGAPANI (DEAD) THROUGH L.Rs.

ONE Sri G. Bharat filed a complaint C.D. 251/90 in District Forum, Prakasam District at Ongole claiming compensation of Rs. 50,000/- against one Dr. G. Sarangapani who is an Orthopedician for negligence in performing operation to the left hand of the complainant. On 17.3.93, the District Forum allowed the com- plaint in part and directed the opposite party i.e. Dr. G. Sarangapani to pay to the complainant compensation of Rs. 15,000/- with interest @ 12% per annum and costs of Rs. 300/-.

AGGRIEVED by the said order of the District Forum, Dr. G. Sarangapani, the opposite party preferred an appeal C.D.A. 152/93 to the State Commission. On 5.4.94 the State Commission allowed the appeal setting aside the order of the District Forum, and remanded the matter to the District Forum to conduct fresh enquiry after giving notice to both the parties and with liberty to file all the documents available with both the parties. After remand the District Forum by its order dated 28.12.94 dismissed the complaint stating that the notice was issued to the complainant and the complainant failed to appear to give evidence before the District Forum. It accordingly considered the evidence on record and dismissed the complaint. After dismissal of the complaint by the District Forum on 28.12.94 Dr. G. Sarangapani the opposite party expired on 27.1.95.

This appeal with S.R. No. 1173/95 was filed by the complainant on 17.4.95 with I.A. No. 573/95 to bring Smt. G. Lakshmi, wife of Dr. Sarangapani, G. Dilip, son of Dr. G. Sarangapani and G. Sunita, daughter of Dr. G. Sarangapani who were arrayed as respondents 1 to 3 in the above F.A.S.R. on record as legal representatives of Dr. G. Sarangapani i.e., deceased opposite party in the main appeal.

NOTICE was ordered to the proposed respondents on 26.4.95 and 5.7.95. After service of notice the proposed legal representatives entered appearance through an Advocate and filed a counter opposing the I.A. to bring on record the legal representatives of late Dr. Sarangapani in the main appeal as respondents 1 to 3. In the appeal it was mainly contended that the dispute related to deficiency of service rendered by late Dr. G. Sarangapani which is merely a personal lis and personal dispute. The cause of action does not survive against the legal representatives of the opposite party i.e., proposed respondents in the appeal, as such the appeal is liable to be dismissed as not maintainable. It was further stated that after notice as the complainant did not appear before the District Forum on the date of adjournment the District Forum rightly considered the evidence on record and dismissed the complaint. It was further stated that the copy of the order in all probability was served on the Counsel for the complainant Sri D. Vasistha on 21.1.95 and the opposite party also received order on the same date, they therefore prayed for the dismissal of the appeal. The only question therefore that arises for consideration is whether the dispute against the opposite party is purely a personal ''lis'' and does not survive after his death or whether the cause of action survives and the legal representatives are liable to pay any compensation. It is to be seen from the allegations in the complaint and earlier order passed by the District Forum that the complainant claimed compensation for negligence of the Doctor in conducting the operation on his left hand. The cause of action being the negligence of the Doctor which is purely personal. The District Forum dismissed the complaint on 28.12.94. It was therefore, held that there is no proof of any negligence on the part of Dr. G. Sarangapani in conducting the operation. The cause of action and the lis does not survive against the legal representatives as it is purely an action against the doctor for his negligence in performing the operation which is purely personal. No cause of action survives after the death of the doctor. As there is no order quantifying the compensation it cannot be said that the legal representatives were responsible for payment of any compensation. We are, therefore, satisfied that the cause of action does not survive and the legal representatives of Dr. G. Sarangapani cannot be made liable for his negligence. The learned Counsel for the appellant Mr. V. Gouwrisankar Rao relied on the decisions reported in A.I.R. 1925 Madras 1210, A.I.R. 1976 Rajasthan 65, A.I.R. 1962 Mysore 44, A.I.R. 1930 Allahabad 131, A.I.R. 1937 Bombay 401, and submitted that appeal is maintainable against the legal representatives and the legal representatives are liable for the ngligence of the doctor. The principles laid down in the aforesaid decisions have no application to the facts of this case. For instance in A.I.R. 1962 Mysore page 44 in Doddamallappa Channabasappa Kari v. Gangappa Shiddappa Gulgani and Others, it was held that the provisions of Section 153, Civil P.C. would be applicable to an appeal against the person who was dead at the time of the institution of the appeal and the Court can permit the appellant (defendant) to amend the memo of appeal so as to bring on record the legal representatives of the original plaintiff when the plaintiff was dead at the time the appeal was filed. But in the above case relates to execution of sale deed in respect of certain immovable properties a suit was filed for possession by the vendee. Since it relates to immovable property the legal representatives (judgment debtors) can be made liable. In A.I.R. 1976-Rajasthan, page 65 in Ramjeewan v. Chand Mohammed it was held that in the appeal filed against the dead person due to mistake amendment can be allowed and delay was condoned. But in the instant case it is not a question of allowing an amendment in appeal after a pre- scribed period of limitation and condoning the delay. On the other hand the question is whether the cause of action survives against the legal representatives to make them as parties in the appeal and to adjudicate their liability when the doctor who is said to have performed the operation negligently died and the complaint was dismissed against him. Hence the aforesaid two decisions have no application to the instant case. As the cause of action does not survive against the legal representatives of Dr. G. Sarangapani against whom the complaint was dismissed, we are satisfied that they cannot be brought on record as legal representatives and the appeal is not maintainable. Accordingly I.A. 573/95 was dismissed and consequently the appeal is also rejected. There shall be no order as to costs. Appeal dismissed.