K PATRA vs GHANASHYAM DAS (RUIDAS) & ANR ; LIFE MEDICAL STORE

K.S. Chaudhari, Presiding Member

[1] This revision petition has been filed by the petitioner against the order dated 31-05-2013 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ''the State Commission'') in S.C. Case No. FA/492/2012 Dr. K. Patra Vs. Gyanashyam Das (Ruidas) & Anr. by which, while allowing appeal partly order of District Forum allowing complaint was modified.

[2] Brief facts of the case are that Complainant/respondent filed complaint pertaining to of his younger brother Bijoy Das alias Ruidas aged 24 years negligent medical treatment by opposite party no. 1 /petitioner. Opposite parties resisted complaint and learned District Forum after hearing both the parties allowed complaint and directed opposite party no. 1 to pay Rs.9 lakhs to the complainant as well his brother Bijoy Das and further directed to pay cost of Rs.10,000/-. Appeal filed by opposite party no. 1 was partly allowed by learned State Commission vide impugned order and compensation was reduced from Rs.9 lakhs to Rs.3 lakhs and State Commission further allowed litigation cost of Rs.10,000/- to the complainant, against which this revision petition has been filed.

[3] Heard learned counsel for the parties and perused record.

[4] Learned counsel for the petitioner submitted that complaint filed by complainant without any authority from his major brother was not maintainable even then learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal partly, hence revision petition be allowed and impugned order be set aside. On the other hand, learned counsel for respondent no. 1 submitted that as this objection was not raised before Fora below, this objection cannot be raised at this stage and order passed by learned State Commission is in accordance with law, hence revision petition be dismissed.

[5] Para 3 (A) of the complaint runs as under:-- "That this complainant begs to state that Bijoy Das alias Ruidas is the younger brother of this Complainant and his age is about 24 years, unmarried boy, and comes from very poor socio-economic group."

[6] Thus it is admitted case of the complainant that he filed complaint for compensation for medical negligence towards his younger brother Bijoy Das who was major at the time of filing complaint as well at the time of taking treatment. Admittedly, complaint has not been filed as power of attorney of Bijoy Das but complaint has been filed in the name of complaint himself. Admittedly complainant himself has not taken any treatment from opposite parties and this complaint has not been filed pertaining to any deficiency in treatment of the complainant himself but has been filed regarding deficiency in service towards complainant''s brother Bijoy Das.

[7] Section 2(b) of Consumer Protection Act defines complainant as under:- "Complainant" means

A consumer; or

Any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; and

The Central Government or any State Government; or

One or more consumers, where there are numerous consumers having the same interest;

In case of death of a consumer, his legal heir or representative; who or which makes a complaint;"

[8] Perusal of aforesaid clause reveals that consumer may be a complainant and consumer has been defined in Section 2(d) (ii) as under:-- "[Hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];"

Complainant Ghanashyam Das has not availed services from opposite party for his treatment and complainant does not fall within purview of beneficiary of Bijoy Das and in such circumstances complaint filed by the complainant Ghanashyam Das pertaining to deficiency in service towards his major brother Bijoy Das was not maintainable and learned District Forum committed error in allowing claim of the complainant and his brother though complainant has not claimed any compensation for himself but claimed compensation for medical negligence pertaining to the patient Bijoy Das only. When complaint itself was not maintainable as complainant does not fall within purview of consumer, learned District Forum had no jurisdiction to entertain and allow complaint and complaint was liable to be dismissed for want of authorization to file complaint.

[9] Learned counsel for the respondent submitted that this defence was not taken before District Forum or State Commission and now this defence cannot be taken at this stage. In support of his contention he has placed reliance on Bhagat Singh & Ors. Vs. Jaswant Singh, 1966 AIR(SC) 1861 in which it was observed as under:-- "The case more to the point is the privy council case relied on by the Courts below, viz., 1930 AIR(PC) 57 (I), where it was held that "where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward.

[10] On the other hand, learned counsel for the respondent placed reliance on judgment of Hon''ble Apex Court in Gurucharan Singh Vs. Kamla Singh & Ors., 1976 1 SCR 739 in which it was held that a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the Court of last resort.

[11] In the light of judgment of Gurucharan Singh pure question of law can be raised at any stage which is based on undisputed or proven facts. Complainant himself has admitted that he has filed complaint for compensation towards deficiency in medical treatment of his brother Bijoy Das who was about 24 years age. Once it is admitted case that Bijoy Das was major at the time of filing complaint as well at the time of taking treatment, complaint could have been filed only by him as he was consumer. His brother complainant Ghanashyam Das could have filed complaint only as power of attorney of Bijoy Das but he had no locus standi to file complaint on his own behalf.

[12] As complaint was filed by unauthorized person, it was not maintainable before District Forum and complaint was liable to be dismissed at the initial stage and in such circumstances orders passed by learned District Forum and State Commission are liable to be set aside.

[13] Consequently, revision petition filed by the petitioner is allowed and impugned order dated 31-05-2013 passed by the State Commission in S.C. Case No. FA/492/2012 Dr. K. Patra Vs. Gyanashyam Das (Ruidas) & Anr. and order of District Forum dated 17-05-2013 in Complaint No. 14/2007 Ghanashyam Das Vs/ Dr. K. Patra & Anr. is set asdie and complaint stands dismissed with no order as to costs.

[14] As this objection has been taken at this stage, patient Bijoy Das is given liberty to file complaint along with application under Section 24 A of Consumer Protection Act.