Allowed

The Mother Superior v. Rajakkad

Kerala HC9 Feb 2016OP(C)/2811/2015

Case brief

AI extract

What is this about?

In this original petition under Article 227, the petitioner challenging the refusal of the Idukki District Consumer Redressal Forum to delete unnecessary parties held that the Forum must immediately decide maintainability when no cause of action exists against them. The court directed the Forum to consider the application on merits within one month.

What did the court decide?

The petitioner's original petition is allowed, and the Idukki District Consumer Redressal Forum is directed to consider the application on merits and pass orders within one month.

The Mother Superior Vs Rajakkad — Consumer Protection | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937

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OP(C).No. 2811 of 2015

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PETITIONER(S):

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-----------------------

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1. THE MOTHER SUPERIOR, VISITATION CONVENT, N.R.CITY, RAJAKKAD, IDUKKI.

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2. THE MOTHER SUPERIOR, VISITATION CONVENT, SH MOUNT, KOTTAYAM.

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BY ADVS.SRI.V.S.BABU GIREESAN SMT.K.PREETHA JOHN

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RESPONDENT(S):

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--------------------------

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SUNNI M.M., MARUTHUR MATTATHIL, RAJAKKAD P.O., IDUKKI - 685 566.

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BY ADV. SMT. MABLE C.KURIAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 2811 of 2015

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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--------------------------------------

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EXT.P1: TRUE COPY OF COMPLAINT IN CC 64/2015 OF CDRF IDUKKI. EXT.P2: TRUE COPY OF I.A. 87/15 DTD.18.3.2015.

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EXT.P3: TRUE COPY OF INTERIM ORDER IN IA.NO.87/2015 DTD.26.10.2015.

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RESPONDENT(S)' EXHIBITS:

NIL

//TRUE COPY//

P.S.TO JUDGE

Ms v/

K.ABRAHAM MATHEW J.

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O.P.(C)No.2811 of 2015

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Dated this the 9^th day of February, 2016

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JUDGMENT

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The first respondent filed a complaint before the Idukki District Consumer Disputes Redressal Forum for compensation for the death of his wife on the allegation that her death was due to the negligence of two doctors (respondents 4 and 5 in the complaint) of a hospital in Kottayam district, the Managing Director of which is the third respondent in the complaint. The petitioners are respondents 1 and 2 in the complaint. On receiving notice from the forum the petitioners filed an application before the forum to delete them from the party array on the ground that the complainant/respondent has no cause of action against them and they are unnecessary parties and they have been made parties only to make the complaint maintainable in the Forum in Idukki District within whose jurisdiction the respondent/complainant resides. The forum has refused to consider it.

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Heard learned counsel on both sides.

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The hospital where the death of the respondent's wife took place is situated in Kottayam district. The doctors concerned are residents in Kottayam district. The complaint was filed in Idukki district. The third respondent is the Managing Director of the hospital. The hospital belongs to a community of nuns. The first petitioner is mother superior of a convent in Idukki district and the

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O.P.(C)No.2811 of 2015 2

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second petitioner of a convent in Kottayam district. Their specific allegation is that apart from the fact that they are also members of the community of nuns to which the hospital belongs and mother superiors of two convents of that community they have nothing to do with the hospital. The authority who is responsible for the conduct of the hospital is the third respondent and merely because the petitioners are members of the community of the nuns to which the hospital belongs they cannot be made parties to the complainant. It is also alleged that the first respondent has been made a respondent in the complaint only to make it maintainable in the District Forum of Idukki district. The forum refused to take into consideration their contentions and it made the following observations:

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“The involvement of opposite parties can be decided on merits. Hence it is not right and fair to decide whether the opposite parties 1 and 2 are the necessary parties in the complaint at this stage.”

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Maintainability of this petition under Article 227 of the Constitution is challenged by the respondent. The argument is that the order which is assailed in this petition is an appealable one under Section 15 of the Consumer Protection Act. Reliance is placed on the decision of the Supreme Court in Nivedita Sharma v. Cellular Operators Assn. of India and others(2011(14) SCC

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337). The said decision the Supreme Court held that it is not proper

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O.P.(C)No.2811 of 2015 3

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for the High Court to entertain a petition under Article 226 or 227 of the Constitution in view of the fact that the party concerned has a right of appeal.

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But here is a case where the Forum has refused to pass an order. It is the failure of the Forum to discharge its function that is assailed and not an order passed by it. Section 15 of the Act is not applicable. The failure of the forum to exercise the jurisdiction vested in it can be questioned under Article 227 of the Constitution. This original petitioner is maintainable.

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The Forum is expected to be just and fair to every party. When a respondent brings to its notice that he/she has been made a respondent with the malicious intention of making the complaint maintainable before that particular Forum and the complaint does not reveal any cause of action against him, it is its bounden duty to determine immediately the question of maintainability of the complaint before any other step is taken in the proceedings. I am shocked by the callous approach of the Forum, which is nothing but unjust. It should discharge its function with promptness and sense of responsibility. It should not have asked the petitioners to wait till the enquiry is over unmindful of the hardship that may be caused to them if ultimately it finds that the respondent has no cause of action against them and it has no territorial jurisdiction to entertain the complaint.

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O.P.(C)No.2811 of 2015 4

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In the result, this Original Petition is allowed,. and the Idukki District Consumer Redressal Forum is directed to consider on merits and pass orders on the application filed by the petitioners within one month from the date of receipt or production of a copy of this

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judgment, whichever is earlier.

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Sd/-

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K.ABRAHAM MATHEW JUDGE

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cms

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/True copy/

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P.S.to Judge

The Mother Superior v. Rajakkad

Case brief

What is this about?

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The Mother Superior v. Rajakkad

Case brief

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