IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MADURAI Present: THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER C.C.No.25/2013 Date of complaint filed : 23.08.2013 Date of orders pronounced : 05.09.2023

1. Rahamathulla (Now Died), S/o Rowthar, Now being represented by His Wife and Sons.

2. Jaibinsa, W/o Rahamathullah, (Late).

3. Parakath Ali, S/o Rahamathullah, (Late).

4. Syed Ibrahim, S/o Rahamathullah, (Late).

All are residing at:

T Sunami Veedu, Pudukudi, Thondi, Thiruvadanai Taluk, Ramanathapuram District. Complainants -Vs-

1. Sugam Priya Hospital, Prabhu Nagar, Kamarajar Salai, Karaikudi – 609 602. 1st Opposite Party

2. Aravind Eye Hospital, Cuddalore Main Road, Thavalakuppam, Pondicherry. 2nd Opposite Party

3. Annai Eye Hospital, No.69, Government Hospital Road, Ramanathapuram. 3rd Opposite Party

4. Dr.Kamala Priya Reddy, No.20, Kailasanathar Koil Street,(Upstairs), Karaikal – 609 602. 4th Opposite Party Counsel for Complainants : Mr.S.Palanivelayutham, Advocate.

Counsel for Opposite Party-1 : Mr.R.Thambiraj, Advocate.

Counsel for Opposite Party-2 : Mr.A.R.M.Ganesh, Advocate.

Counsel for Opposite Party-3 : Mr.Somasundaram, Advocate.

Counsel for Opposite Party-4 : Mr.S.Suresh, Advocate.

This complaint came before me for final hearing on 05.09.2023 and upon perusing the material records this Commission made the following:-

ORDER

THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER. (Open Court)

Leaving aside the factual aspects involved in this case the question and issue to be decided now is whether after the death of the original complainant one Rahamathulla herein, his legal heirs can continue the consumer complaint which has been filed alleging medical negligence?.

1. The complainant’s case :

Originally the complainant one Rahamathulla filed this consumer complaint against the opposite parties/doctors alleging medical negligence in performing Eye Surgery and he filed this consumer complaint claiming Rs.10,00,000/- towards compensation for negligence and improper treatment and Rs.10,00,000/- towards compensation for mental agony and Rs.3,00,000/- towards medical expenses and also Rs.20,000/- as cost of the proceedings.

2. The claim is only against first opposite party. So it is the specific case of the original complainant Rahamathulla that the first opposite party hospital committed medical negligence. The above complaint was filed in the year 2013 and the above said complainant Rahamathulla died on 15.06.2017. Only thereafter the complainants 2 to 4 were impleaded and prosecuting the consumer complaint. This fact was highlighted only during the time of arguments of both sides and the above question of law has been framed and it is hereby answered below.

3. Admittedly the consumer complaint is filed alleging tortious liability. When a cause of action arose on tortious liability then the maxim ’actio personalis moritur cum persona’ will be applicable. As per the maxim, a personal action will end not only by the death of tort-feasor but also by the death of the claimant.

4. The following Judgements are straightaway referred which clinches the entire issue (i) Hon’ble Supreme Court of India, M. Veerappa .Vs. Evelyn Sequeira & Ors The maxim’action personalis cum moritur persona’ had been applied not only to those cases where a plaintiff died during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff died during the pendency of an appeal to the Appellate Court, be it the first Appellate Court or the second Appellate Court against the dismissal of the suit by the Trial Court and or the first Appellate Court, as the case might be. This was on the footing that by reason of the dismissal of the suit by the Trial Court or the first Appellate Court, as the case might be, the plaintiff stood relegated to his original position before the Trial Court. There was unanimity of view among many High Courts regarding the interpretation to be given to the words "othe