P.K. Shamsuddin, President - This appeal is directed against the order passed by the District Forum, Kozhikode, in O.P No. 606/94. Complainant is the appellant.

2. The allegations in the complaint out of which the appeal arises are as follows :-

Sri K.P. Sreenivasan, the father of the appellant, was admitted as an inpatient to the National Hospital, Mavoor Road, Kozhikode, on 3-2-1994 for fever, vomiting and loose stools and in the course of treatment the doctor employed under the opposite party directed him that he should received into his vein 4 bottles of fresh blood for relief from the weakness. Accordingly his blood sample was taken by the opposite party's laboratory and was diagnosed as B-positive. 4 bottles of blood were transfused into his veins by the opposite party on 17-2-1994, 20-2-1994, 25-21994 and 4-3-1994. Meter the second bottle of B-positive blood was transfused, the health condition of the appellant's father became very bad. This was reported to the doctors. Still they continued with the transfusion of the, remaining bottles of B-positive blood into his veins. He was discharged from the Opposite Party - Hospital in a very bad physical condition with instructions to report atleast once in a fortnight for follow- up action. On 22-61994 the doctor in the opposite party hospital after check up advised him to transfuse two more bottles of fresh blood into his veins. The appellant's father received the shock of his life when he was informed that the earlier diagnosis of his blood group as B-positive was erroneous and that his blood _ group is B-negative. This was confirmed by other laboratories. It was attributing the deficiency in service on the part of the opposite party this complaint was filed. .

3. The Opposite Party filed a version in which the allegations were denied While matters stood so the complainant died on- 1-3-1995. The District Forum as per notice dated 25-8-1995 directed the parties to appear before Forum on 11-10-1995, The complainant's son, the present appellant appeared before the Forum and filed I.A. 33/95 to get himself impleaded as the legal representative. The District Forum as per its order dated 11-101995 dismissed the O.P. 606/94 on the basis that the petition was time barred.

4. Feeling aggrieved by the said order this appeal has been preferred.

5. We issued notice to the respondent and pursuant to the notice the opposite party appeared through counsel. We heard the counsel for the appellant and respondent.

6. Learned Counsel appearing for the appellant contended that he is one of the legal heirs of complainant and he was not aware of the complaint and in the circumstances the District Forum erred in dismissing the complaint without going into the merit. It is also contended the period of limitation would start only from the date of receipt of notice of the appellants from the District: Forum and not from the death of the complainant.

7. The counsel for the opposite party on the other hand submitted that the cause of action does not survive after the death of the original complainant and in the circumstances the order passed by the District Forum does not call for any interference. Learned Counsel for the Opposite Party brought to our notice the provisions contained in Section 306 which reads as follows:-

“All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against 'his executors or administrators: except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party, and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.”

8. On the basis of the above provisions learned Counsel appearing for appellant argued that in the instant case the cause of action is the personal• injury not causing the death of the complainan