K.E.RAJESH vs PRESIDENT, DISTRICT CO-OPERATIVE HOSPITAL

COMPLAINANT in O.P. 1153/98 on the file of the Consumer Disputes Redressal Forum, Thrissur is the appellant. COMPLAINANT alleged before the District Forum that he was admitted in the first opposite party-hospital for treatment, he underwent surgery in July, 1997, and the surgery was performed by the second opposite party. After the surgery he had severe pain. When he complained to the second opposite party, he was assured, in the course of time that would disappear by exercise. Inspite of exercise for a long period, the defect did not disappear. So he had to undergo another surgery. He is a manual worker; his endeavour to work and earn for his living is affected by the negligent treatment imparted by the opposite parties. Therefore, he wanted a direction to the opposite parties to pay compensation. Version was filed. The District Forum proceeded to hear the complainant''s Counsel and the respondent. On hearing them the District Forum dismissed the complaint holding that under Section 69 of Kerala Co-operative Societies Act (for short, the Act) the complaint is not maintainable before the Forum. The said dismissal is challenged in this appeal.

LEARNED Counsel for the appellant urged, the view taken by the District Forum that the complaint is not maintainable before it in view of Section 69(1) of Kerala Co-operative Societies Act is not correct with due regard to the nature of the dispute involved. It is urged by the learned Counsel for the complainant that dispute touching the business of the Society should be one connected with actual business or such other matter and it cannot include a case of medical negligence. Reliance was also made by the learned Counsel on the decision of Supreme Court reported in AIR 1969 SC 1320, Decan Merchants Co-operative Bank Ltd. v. M/s. Dalichand Jugraj Jain & Ors. Reliance was also made by the learned Counsel on the decision of the Supreme Court in III (1995) CPJ 1 (SC)=1995 (3) CPR 412., Indian Medical Association v. V.P. Santha & Anr., wherein the Supreme Court went into the question of jurisdiction of the Commission and Forum to deal with the case of medical negligence and held that these FORA constituted under the Consumer Protection Act have got legal background and, therefore, they are competent to adjudicate upon the said issues. This decision is relied on in support of his argument as to competency of Forum to adjudicate the matter. On the other hand the learned Counsel for the respondent sought to support the view of the District Forum maintaining that even assuming that the Registrar of Co-operative Society himself may not be able to adjudicate a case of medical negligence, since he could transfer such type of dispute to any person who has been invested with power by the Government to deal with the same, there could be no difficulty for the body constituted under Section 70(1) of the Act to deal with the matter. Reference was made by the learned Counsel on the decision of this Commission in V. Viswanatha Pillai & Anr. v. The Branch Manager, Kottayam D.C.B. Ltd. & Anr., 1996 (1) CPR 453. The whole argument of the appellant is based on the character and nature of the business. Here the complainant is not a member of the Society. Unless it is shown, the case of negligence in treatment by the doctors of a co-operative hospital could acquire the character of "business" mentioned in Section 69(1), a dispute touching the said business cannot fall within the scope of Section 69(1) so as to require the same to be referred to the Registrar for adjudication. Undoubtedly medical negligence involves adjudication of the question whether the doctor attended the patient with the care and deligence expected of him. It will involve the question whether hospital was equipped for attending the ailment of the patient. This involves both legal and factual questions and, therefore, normally such questions cannot be treated to have been intended to be dealt with by Registrar of Co-operative Society. The Supreme Court in Decan Merchants Co-operative Bank Ltd. v. M/s. Dalichand Jagraj Jain & Ors. (supra), referred to early, interpreted the word ''business'' in Sub-section (1) of Section 91 Maharashtra Co-operative Societies Act (32 of 1961) and observed that the said word ''business'' is used in narrower sense and it means the actual trading or other similar business activity of the Society which the Society is authorised to enter into under the Act, Rules and Bye-laws. In para 23 of the said decision the Supreme Court states one other limitation, and interprets the word "dispute" and holds, the word "dispute" covers only those disputes which are capable of being resolved by the Registrar or his nominee. The competency of the Forum to adjudicate cases of medical negligence has been gone into by the Supreme Court in the decision in Indian Medical Association v. V.P. Santha & Ors. (supra), wherein the Supreme Court held that the FORA are competent and equipped to go into the question of medical negligence particularly in the context of the fact the President of the Forum since is well-versed in law and has judicial or legal experience, they are in a position to adjudicate both the legal and factual question that could arise in such matters.

Having noted that a wide interpretation cannot be given to the word "dispute" in Section 69(1) of the Kerala Co-operative Societies Act, in the context of the aforesaid judicial pronouncements, it has to be held, that the dispute of the nature in question would not fall within the scope of Section 69(1). Now it becomes necessary to advert to Section 70(1)(b) of the Act which gives power to the Registrar to transfer matter for disposal to any person who has been invested by the Government with power in that behalf. When the Registrar cannot deal with a matter, in such matters has to be transferred it to competent person who is invested with powers in that behalf. Admittedly there is no such person appointed or is invested with such powers to adjudicate matters relating to medical negligence. Even assuming such course is open to the Registrar; the "dispute" should be one which could take in a matter like medical negligence. As already seen the word "dispute" in the context has to be held to have been used only to get a restricted meaning to take in only such matter can resolve. And "business" could means only actual trading or other similar business activity when the Society is authorised to enter into. Therefore, one cannot say that the matter involving question of medical negligence dealt with by the Registrar of Co-operative Societies so that Section 69(1) of the Act; therefore, the said section cannot be made applicable.

THE decision in 1996(1) CPR 453 (supra), is clearly distinguishable. (V. Viswanatha Pillai & Anr. v. THE Branch Manager, Kottayam D.C.B. Ltd. & Anr.). THE same concerns a loan transaction. We have already noted that the Supreme Court in Decan Merchantile Co-operative Bank v. Dalichand (supra), held that the "business" is used in the Co-operative Societies Act in a narrower sense and it means the actual trading or other similar business activity of the Society. THErefore, the said decision cannot be made applicable to a case involving medical negligence. When that is the position the order passed by the District Forum cannot be supported and the same is liable to be set aside and the matters has to be remitted to the District Forum for disposal in accordance with law. In the result the appeal is allowed the impugned order is set aside and the matter is remitted to the District Forum, which shall restore the complaint to file, give opportunity to opposite party to file their version and will dispose of in accordance with law. There will be no order as to costs in this appeal. Parties shall appear before the District Forum on 30.12.1999. Appeal allowed.