JURISDICTION OF THE FORUM/COMMISSION TO ENTERTAIN A COMPLAINT    WHERE THERE IS AN ERROR OF NON-JOINDER OF THE PARTY

 

Whether non-impleading the treating doctor as party could result in dismissal of the original petition for non-joinder of necessary party.

As per the provisions of Section 22 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') the Commission has to regulate its business.

Section 22 lays down the power of and procedure applicable to the National Commission

" 22. Power of and procedure applicable to the National Commission.-

The National Commission shall, in the disposal of any complaints or any proceedings before it, have-

(a) the power of a civil court as specified in sub- sections (4), (5) and (6) of section 13;

(b) the power to issue an order to the opposite party directing him to do any one or more of the things referred to in clauses (a) to (i) of sub- section (1) of section 14,and follow such procedure as may be prescribed by the Central Government.".

 So far as the law with regard to the non-joinder of necessary party under Code of Civil Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC there also even no suit shall fail because of mis-joinder or non-joinder of parties.

Even if after the direction given by the Commission the concerned doctor and the nursing staff who were looking after the deceased  have not been impleaded as opposite parties it can not result in dismissal of the original petition as a whole when a patient is admitted to the highly commercial hospital like the present institute, a thorough check up of the patient is done by the hospital authorities, it is the Institute which selects after the examination of the patient that he suffers from what malady and who is the best doctor who can attend, except when the patient or the family members desire to be treated by a particular doctor or the surgeon as the case may be.

Therefore, the expression used in Rule 14 (1) (b), " so far as they can be ascertained", makes it clear that the framers of the Rules realized that it will be very difficult specially in the case of medical profession to pinpoint that who is responsible for not providing proper and efficient service which gives rise to the cause for filing a complaint

Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence

The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities.

 

 

                                                                       -

 DR PREM LATA ,

MEMBER-CONSUMER FORUM

 

 

 

                                                                    

 

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