Laws laid down by supreme court
AN ERROR OF NON-JOINDER OF THE PARTY
AN ERROR OF NON-JOINDER
OF THE PARTY
Smt. Savita Garg vs The Director, National Heart ... on 12
October, 2004Author: A Mathur Bench:
B.N.Agrawal, A.K.Mathur CASE NO.:Appeal (civil) 4024 of 2003 DATE OF JUDGMENT:
12/10/2004
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 A.K.Garg 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.
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