The legal standing to sue for medical negligence lies primarily with the Class I legal heirs of the deceased, and the father's claim without necessary parties was dismissed.

COMMON ORDER

R.Subbiah, J. President

The appellant herein filed the main case in C.C. No.41 of 2022 as complainant before the DCDRC, Kanyakumari District @ Nagercoil, as against the OPs, who are the respondents herein, alleging that the medical negligence and unfair trade practice on their part had caused the death of his daughter who, according to him, had died either during the C-Section surgery or during the unauthorized additional procedure/Hysterectomy done to her at the Clinic of OP Nos.1 to 5 and further management at the Health Centre of OP Nos.6 to 9.

2. It is during the course of the proceedings in the main case that was taken up on file after admission, OP Nos.1 to 5 moved CMP No.53 of 2022, seeking the District Commission to dismiss the complaint for maintainability on the ground that the complainant, who is the father of the deceased, is not a consumer and a similar petition was also moved by OP Nos.6 to 9 in CMP No.55 of 2022. By its common order, dated 30.06.2023, the District Commission allowed the CMPs filed by the respective OPs, holding inter alia that it is only the husband of the deceased who had hired the services of the OPs/petitioners and hence, the complainant has no locus standi to maintain the complaint and consequently, dismissed the main case as not maintainable. It is as against the said common order passed in the CMPs culminating in consequential dismissal of the main Consumer Complaint; the complainant has filed the Revision Petition as well as the First Appeal.

3. Inasmuch as going into the merits of the case to find out whether a case of medical negligence is made out is absolutely a futile exercise before answering the following two dominant core issues that stem from the impugned order,

a) Whether the father of the married daughter/deceased, can fit himself into the definition of consumer to seek consumer justice over his daughter’s death due to alleged medical negligence that too in the presence of her husband on the ground that the son-in-law is not only uninterested in filing or pursuing the case but also he is in collusion with the OPs?

b) Can it be a right practice and procedure on the part of the District Commission to entertain the Miscellaneous Petitions in question particularly after taking the complaint on file after scrutiny at the pre- admission stage, for deciding the maintainability point as the preliminary issue therein?, this Commission heard the parties as well as the trio/Amici Curiae in the above segments, for disposing of the cases together by this Common Order.

4. The appellant, at the first instance, endeavored to narrate his side factual perspective by stating that his deceased daughter was a highly qualified Computer Engineer and she was previously working in the UAE; that, after her return from the said country during June 2020, she used to go for her 2nd pregnancy check-up routinely to the clinic of the 1^st OP/R1 who had made tall advertisements claiming that the services provided by her are of unique standard and grade; that, in the evening hours on 08.08.2020, she had developed labor pain and was asked to report to the 1st OP/Nursing Home where she reported at 7 PM. and, at that time, the 1^st OP, who was not present, had delegated the responsibility to OP No.2/R-2, who is a junior doctor, knowing fully well that the junior was incapable of handling the delivery; that, after keeping the victim simply under observation till 9 PM., she was hurriedly shifted by two nurses to the Operation Theatre, where she is reported to have delivered a baby girl at 10.50 PM and thereafter, i