The main legal point established in the judgment is that the right to sue for compensation for medical negligence survives in the legal heirs of the deceased complainant, and the dismissal of an interim application does not necessarily amount to res judicata.

ORDER

Anupam Dasgupta, Presiding Member - This revision petition is from the order dated 4.7.2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, the State Commission ) dismissing revision petition No. 12 of 2011 filed by the petitioners. The said revision petition before the State Commission challenged the order dated 19.2.2011 of the District Consumer Disputes Redressal Forum, Shimoga (in short, the District Forum ) on an interim application filed by the opposite parties (OPs who are the petitioners before us) in connection with consumer complaint No. 11 of 2011 filed by the respondent.

2. (i) In the said interim application, the OPs contended that the father of the complainant (H.B. Chandrappa) who was the patient alleging medical negligence against OPs had himself filed an earlier consumer complaint (No. 125 of 2010) before the District Forum through his son H.C. Eranna (the complainant in C.C. No. 12 of 2011) as the holder of Chandrappa's power of attorney. The previous complaint alleged medical negligence/deficiency in service against the same OPs in treating the said Chandrappa for cancer of his right jaw. However, during the pendency of the complaint before the District Forum, Chandrappa died. The legal representatives of the deceased complainant Chandrappa then filed an interim application before the District Forum seeking to pursue the complaint proceedings on behalf of the deceased. The OPs objected to this interim application on the ground that the cause of action, viz., alleged injury due to the alleged medical negligence suffered by the deceased complainant Chandrappa was in the nature of tortious "personal injury" to him which got extinguished with the demise of the person, i.e., Chandrappa claiming to have suffered such personal injury. On the other hand, the legal representatives of the deceased complainant contested this stand of the OPs on the ground that they had the right to pursue the complaint proceedings in accordance with the provisions of Section 13(7) of the Consumer Protection Act, 1986 (hereafter, 'the Act').

(ii) By its order dated 20.10.2010, the District Forum dismissed the said application (and hence also the complaint) holding, in agreement of the stand of the OPs, that the complaint had abated since the cause of action (and the right to sue) had been extinguished along with the death of the complainant claiming to have suffered the alleged medical negligence and, as such, the legal representatives of the deceased complainant could not continue with the complaint proceedings.

(iii) Thereafter, H.C. Eranna, the holder of power of attorney of his late father filed a new complaint (C.C. No. 11 of 2011) against the same OPs before the same District Forum on the same allegations of medical negligence suffered by Chandrappa, but with the additional ground that Chandrappa had died as a result of the medical negligence of the OPs/petitioners. The OPs, on receiving notice of this complaint, filed an interim application opposing consideration of the complaint on the ground that this new complaint was also not maintainable ab initio, being barred by the principle of res judicata as well as the same legal ground opposing the earlier interim application of Chandrappa's legal representatives continuing with the complaint after his demise.

(iv) However, after considering the pleadings of the parties and the legal position on the subject based on several decisions, including that of the Supreme Court in the case of Mukesh Kumari (Minor and Dead) by LRs. v. M. Lal Oswal Cancer Treatment and Research Foundation, (2004) 13 SCC 69, this time the District Forum thought it fit to dismiss the interim application of the OPs.

(v) The OPs challenged this order of the District Forum by way of a revision petition before the State Commission. However, the latter too dismissed the revision petition of the OPs by its impugned order, with the following observations:

"9. It is not in dispute that