Dismissed

Cosmopolitan Hospitals (P) Ltd. v. N.G.Pillai

Kerala HC1 Feb 2021WA/227/2021

Case brief

AI extract

What is this about?

This writ appeal was dismissed. The High Court held that the Learned Single Judge did not commit any jurisdictional error in dismissing the appeal. It ruled that whether a bystander qualifies under the Public Utility Services definition is a mixed question of fact and law requiring adjudication based on evidence before the Permanent Lok Adalath, warranting no interim interference.

What did the court decide?

The Writ Appeal was dismissed; no interference was granted to stall proceedings before the Permanent Lok Adalath.

Cosmopolitan Hospitals (P) Ltd. Vs… — Constitutional and Fundamental Rights | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

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WA.No.227 OF 2021

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AGAINST THE JUDGMENT DATED 13.01.2021 IN WP(C) 944/2021(P) OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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COSMOPOLITAN HOSPITALS (P) LTD. PATTOM P.O., THIRUVANANTHAPURAM – 695 004, REPRESENTED BY CHIEF EXECUTIVE OFFICER, MR.ASHOK P.MENON, AGED 60 YEARS, S/O.LATE M.R.P.MENON, RESIDING AT CHARUTHA, VETTAMUKKU, THIRUVANANTHAPURAM.

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BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.R.GITHESH SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S.

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RESPONDENT/RESPONDENTS:

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1 N.G.PILLAI SHREE, T.C.36/1054, KAIRALI NAGAR, KNRA 9, CAP. VARSHA ROAD, ENCHAKKAL, THIRUVANANTHAPURAM.

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2 THE PERMANENT LOK ADALAT THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, THE DISTRICT COURT COMPLEX, VANCHIYOOR, THIRUVANANTHAPURAM, PIN - 695 035.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 227/2021

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: 2 :

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Dated this the 1^st day of February, 2021.

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JUDGMENT

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SHAJI P. CHALY, J.

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The appeal is preferred by the petitioner in W.P.(C) No. 944 of 2021, challenging the judgment of the learned single Judge dated 13.01.2021. The subject matter of consideration before the learned single Judge was Ext. P4 order passed by the permanent Lok Adalath at Thiruvananthapuram for Public Utility Services in I.A. No. 23/2020 in O.P. No. 24 of 2019 dated 07.12.2020, whereby the permanent Lok Adalath held as follows at paragraphs 12 to 15:

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“12. Section 22B of the Legal Services Authorities Act deals with the establishment of Permanent Lok Adalaths. As per this Section, the Central Authority or State Authority, as the case may be, by notification, establish Permanent Lok Adalaths for exercising jurisdiction in respect of one or more Public Utility Services for the areas specified in the notification. Section 22C of the said Act is the relevant provisions which authorizes Permanent Lok Adalat to take cognizance of cases. By virtue of these provisions, any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalath for settlement of the said dispute relating to 'public utility services'.

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Section 22A(b) of the Act defines the word 'public utility services.' It reads as under:-

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(b) “public utility service” means any –

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(i) Transport service for the carriage of passengers or goods

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W.P.(C) No. 227/2021

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: 3 :

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by air, road or water or

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(ii) Postal telegraph or telephone service or

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(iii) Supply of power, light or water to the public by any establishment or

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(iv) System of public conservancy or sanitation; or

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(v) Service in hospital or dispensary; or

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(vi) Insurance service,

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and includes any service which the Central Government or the State Government, as the case may be, may in the public interest, by notification, declare to be a public utility service for the purposes of this Chapter.”

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Sub Section 8 of Section 22C provides that if the parties fail to reach at an agreement, the Permanent Lok Adalath shall, if the dispute does not relate to any offence, decide the dispute. In the light of these provisions, a person who is having a dispute against a hospital can very well approach Permanent Lok Adalath for redressal of his grievance. 14. The learned counsel for the petitioner has relied on a decision rendered by a Division Bench of our own Hon'ble High Court in Ambika Kumary v. State of Kerala (2011 (2) KLT 97). It was a writ appeal originated from a petition filed before this Forum, by the legal heirs of a person who died from a hospital, claiming damages from some doctors working in a ESI hospital. The allegation was that the death occurred on account of medical negligence. The respondents therein raised a preliminary objection regarding the maintainability of the petition on the ground that the Permanent Lok Adalaths have no jurisdiction to decide such a claim, by conducting trial like a Civil Court. This Forum has rejected the said contention. Though the respondents had approached the Hon'ble High Court with a writ petition challenging the said order, they did not get any relief. Not satisfied with the said order the respondent therein filed the above writ appeal. Our Hon'ble High Court, after considering all the issues raised by the appellants in detail, rejected their contentions and made clear that the all the schemes of the Act is to

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W.P.(C) No. 227/2021

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: 4 :

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provide a new Forum for easy and fast settlement of certain disputes and the same is optional and alternative to the existing legal remedies available under the general law. In the light of this judgment rendered in a writ appeal which was originted from a claim petition alleging medical negligence, we cannot accept the contention that the Permanent Lok Adalath has no jurisdiction to entertain a claim petition filed against a hospital for damages.

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There is no dispute regarding the fact that the hospital authorities had issued a bystander's pass to the petitioner. By issuing such a pass, the hospital authorities had allowed the petitioner to stay in the hospital and render necessary assistance to his wife, who was an inpatient. As per Section 22A(b)(v), services rendered by a hospital is also included in the list of 'Public Utility Services'. Section 22C of the Act allows 'any party to a dispute' to approach the Permanent Lok Adalath for settlement of disputes. There is nothing in this statute which restricts its applicability to patients only. Therefore, by virtue of Section 22 of the Act, if a dispute arises between a patient/person who was permitted to remain in a hospital as a bystander, he can very well approach Permanent Lok Adalth for redressal of his grievance. In short, the contention of the respondent that the Permanent Lok Adalath has no jurisdiction to proceed with the petition filed by a stander alleging deficiency in service, is not at all tenable and hence rejected. This point is found accordingly.

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To put it short, in the order, the Permanent Lok Adalath held that it has got power to consider the issue raised by the first respondent before it in the application submitted.

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The learned single Judge, after considering the case put forth

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by the appellant, found that the contention as to whether a 'bystander'

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W.P.(C) No. 227/2021 : 5 :

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would come under the definition of 'public utility service' under the provisions of Section 22A of the Legal Services Authorities Act, 1987 ('the Act, 1987' for short) also requires to be adjudicated on the basis of the evidence and therefore, no interference is required at this stage to stall the proceedings before the permanent Lok Adalath.

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We have heard the learned Senior Counsel for the appellant Sri.

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S. Sreekumar, and perused the pleadings and materials on record.

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The main ground raised by the appellant in the appeal is that the Permanent Lok Adalath has no jurisdiction to entertain the application submitted by a bystander of a patient. Admittedly, the first respondent was a bystander to his wife in the appellant hospital, who was treated as an inpatient in room No. 807 of the hospital. The case projected by the first respondent in the application submitted is that he has suffered a fracture injury consequent to the negligence of the hospital and is having a permanent disability of 10%.

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Chapter VIA of Act, 1987 deals with pre-litigation conciliation and settlement and the word 'public utility service' is defined under Section 22A(b) of Act, 1987 to mean also any service in hospital or dispensary.

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Section 22B empowers a permanent Lok Adalath established for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be specified in the notification,

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W.P.(C) No. 227/2021 : 6 :

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notwithstanding anything contained in Section 19 of Act, 1987 dealing with organisation of Lok Adalaths for settlement of any matters before a court of law or any disputes by and between any parties.

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Section 22C enables any party to invoke the jurisdiction of the permanent Lok Adalath before the dispute is brought before any court for the settlement of the disputes. As per the provisos under sub-Section (1) thereto, the permanent Lok Adalath shall not have jurisdiction (i) in respect of any matter relating to an offence compoundable under any law and (ii) in the matter where the value of the property in dispute exceeds Rs.10 lakhs.

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Sub-section 2 makes it clear that after an application is made under sub-Section (1) to the permanent Lok Adalath, no party to that application shall invoke jurisdiction of any court in the same dispute. Sub-Sections (3) to (8) delineates the manner in which an application is to be considered. It was taking into account the provisions of the Sections 22A to 22C that the Permanent Lok Adalath has passed Ext. P4 order holding that it has got the power to consider the application submitted by the first respondent.

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Even though learned Senior Counsel had advanced the contention that the Permanent Lok Adalath is not a regular court relying upon the judgment of the Apex court in LIC of India V. Suresh Kumar [(2011) 7 SCC 491] and the judgment of the Punjab and

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W.P.(C) No. 227/2021 : 7 :

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Haryana High Court in Reliance General Insurance Company Ltd. v. Vijaya Kumar and another [AIR 2012 P&H 58] and therefore, there is no power to adjudicate the dispute, we are of the view that those judgments are rendered on the basis of the power exercised under Section 22C of the Act, 1987; whereas under Section 22 of the Act, 1987 read with Sections 22A and 22B, Permanent Lok Adalath is vested with powers to adjudicate an issue relating to a public utility service and pass an award accordingly. Therefore, the question whether the first respondent is entitled to invoke the jurisdiction of the Permanent Lok Adalath and secure any reliefs is a mixed question of fact and law and it can only be deciphered after adjudicating the issue raised.

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In our view, the permanent Lok Adalath, on the basis of the preliminary question raised by the appellant alone, had to render the findings to rule upon its jurisdiction under Act, 1987, which is clear from the findings rendered by the permanent Lok Adalath and extracted above. The learned single Judge has only observed that the question as to whether a bystander would come under the public utility service enabling to secure any reliefs is a subject matter of adjudication on the basis of evidence. We do not think, there is any irregularity or jurisdictional error committed by the learned single Judge in considering the issues raised, thus justifying interference in an appeal field under Section 5 of the Kerala High Court Act.

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W.P.(C) No. 227/2021

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Resultantly, the Writ Appeal fails and accordingly, it is dismissed. However, we make it clear that the findings/observations made either by the permanent Lok Adalath or the learned single Judge would not stand in the way of the permanent Lok Adalath exercising its power for conciliating and settling the matter.

sd/-

S. MANIKUMAR,

CHIEF JUSTICE.

sd/-

SHAJI P. CHALY,

JUDGE.