IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 WP(C).No. 29073 of 2010(H) ---------------------------------------- PETITIONER(S): ------------------------ 1. DR.AMBIKA KUMARY,ASST.INSURANCE MEDICAL OFFICER HIGHER GRADE,ELT WING,ESI HOSPITAL, PEROORKADA,THIRUVANANTHAPURAM. 2. DR.NALINI.N.K,SUPERINTENDENT, ESI HOSPITAL,PEROORKADA,THIRUVANANTHAPURAM. 3. DR.SHYAMALA.P.K,ANASTYOLAGIST, ESI HOSPITAL,PEROORKADA,THIRUVANANTHAPURAM. 4. DR.SUGANDHI GOPINATH,(ASST.INSURANCE MEDICAL OFFICER),ESI HOSPITAL,PEROORKADA, THIRUVANANTHAPURAM. BY ADVS. SRI.SAJEEVU MATHEW, SRI.VPK.PANICKER. RESPONDENT(S): --------------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001. 2. THE DEPUTY DIRECTOR,E S I CORPORATION, SUB REGIONAL OFFICE,KARIMPANAYIL AVENUE, POLAYATHODU,KOLLAM-690 001. 3. PARVATHI @ CHITRA,W/O.(LATE)MURUGAN, DEVI NIVAS,PEROORKADA,THIRUVAXNANTHAPURAM, PIN-695 005. 4. VIPIN KRISHNA,D/O.(LATE)MURUGAN, DEVI NIVAS,PEROORKADA,THIRUVANANTHAPURAM, PIN-695 005. 5. ARAVIND KRISHNA,D/O.(LATE)MURUGAN, DEVI NIVAS,PEROORKADA,THIRUVANANTHAPURAM, PIN-695 005. R1 BY GOVERNMENT PLEADER SRI. T.K. ARAVINDKUMAR BABU R2 BY ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN R3,R4 & R5 BY ADV. SMT.M.P.MARY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29073/2010 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMPLAINT IN O.P.NO.422 OF 2008. P2: COPY OF THE WRITTEN STATEMENT IN O.P.NO.422 OF 2008 FILED BY RESPONDENTS 2 AND 4 TO 6. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE ADDITIONAL 7TH RESPONDENT. P4: COPY OF I.A.NO.27/2010 IN O.P.NO.422/2008 BEFORE THE PERMANENT LOK ADALAT. P5: COPY OF THE ORDER DTD. 02/08/2010 IN I.A.NO.27/2010 IN O.P.NO.422/2008 ISSUED BY THE PERMANENT LOK ADALAT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: R3(A): COPY OF THE CASE SHEET OF THE E.S.I. HOSPITAL, PEROORKADA. R3(B): POSTMORTEM CERTIFICATE DTD. 5/03/2005. R3(C): REPORT OF ADDITIONAL SECRETARY, LABOUR DEPT. GOVT. OF KERALA DTD. 23/11/2007. R3(D): STATEMENT OF DR. S.GOPAKUMAR, M.C.H., THIRUVANANTHAPURAM. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ------------------------------- W.P.(C).No.29073 of 2010 ------------------------------- Dated this the 23rd day of November, 2010. J U D G M E N T Respondents 2 and 4 to 6 in O.P.No.422/08 on the file of the Permanent Lok Adalat, Thiruvananthapuram, are the petitioners herein. 2. Respondents 3 to 5 herein filed Ext.P1 application before the Permanent Lok Adalat (PLA for short), alleging that there was negligence in the treatment that was given to the husband of the 3rd respondent who is also the father of the respondents 4 and 5 and that is led to his eventual death in the Medical College Hospital. On that basis, they claimed compensation of Rs.9,90,000/- against the respondents in Ext.P1. The PLA issued notice to the parties, and Exts.P2 and P3 are the written statements that were filed. 3. Therefore, the 1st petitioner herein, being the 2nd respondent in Ext.P1, filed I.A.No.27/10 before the PLA, challenging the maintainability of the petition. A reading of 2 W.P.(C).No.29073 of 2010 Ext.P4 shows that the contention raised was on the basis that, an expert committee appointed by the Government had already enquired into the circumstances in which the death of late Sri.Murugan had occurred and that in the report dated 3.12.2009 the committee found that there was no negligence on the part of the opposite parties. It was contended that since there is such a report, the complaint is not maintainable. On this basis, it was requested that, the maintainability of the complaint should be decided as a preliminary issue. The PLA heard the preliminary issue and passed Ext.P5 order rejecting I.A.27/10. It is challenging Ext.P5 order, this writ petition is filed. 2. Reference to Ext.P5 order, show that it was contended by the counsel for petitioners that the remedy available to the petitioners in the O.P. was to approach the civil court or ESI Court, and that u/s.22 C (8) of the LSA Act, once the parties fail to reach an agreement, the PLA shall decide the dispute only if the dispute does not relate to any offence. It was also contended that if there is no element of settlement, the PLA has no jurisdiction to proceed to decide the dispute. Reliance was 3 W.P.(C).No.29073 of 2010 also placed on the Apex Court decision in United India Insurance Company Limited Vs. Ajay Sinha and another [(2008) 7 S.C.C. 454]. The arguments were considered by the lok Adalat and all the contentions were rejected. When the matter was taken up for hearing, the contention raised by the learned counsel for the petitioners is that, what is disclosed in Ext.P1 is a case alleging the death on account of medical negligence. According to him, in such a case in view of the first proviso to S.22-C(1), the PLA has no jurisdiction to entertain the complaint. 2. I have considered these contentions. 3. First of all in Ext.P4, I.A.No.27/10, the 1st petitioner did not raise any contention relying on the proviso to S.22-C(1). This argument was also not raised during the course of hearing of the I.A. and therefore this contention was also not dealt with by the PLA in Ext.P5 order. In that view of the matter, it is not open to the petitioners to raise such a plea for the first time before this court. Even otherwise, in my view, what is disclosed 4 W.P.(C).No.29073 of 2010 in Ext.P1 is a claim for tortious liability on account of the death of Sri.Murugan, and this is not a case to which the first proviso to S.22-C(1) is applicable. This is all the more so for the further reason that even according to the petitioner, even as on date, no criminal case has been registered, in relation to the incident leading to the death of Sri.Murugan. Therefore the attempt of the petitioners, by relying on the proviso to S.22-C(1) of the Act is only to defeat and delay the claim of the respondents and therefore has to be rejected and I do so. 4. The death in question has occurred way back in 2005. On account of the preliminary issue raised, and the pendancy of this writ petition, the PLA could not make any progress in the matter. This infact defeats the very purpose for which the Act was enacted and PLA was constituted. Having regard to the lapse of time, the matter has to be expeditiously concluded. In that view of the matter, I direct the Lok Adalat to proceed with the adjudication of O.P.No.422/08 in accordance with law and pass final orders in the matter as expeditiously as possible. It is clarified that anything that is stated in this judgment is only for 5 W.P.(C).No.29073 of 2010 the disposal of this case and that the PLA shall decide the O.P. untrammelled by any of the observations made in this judgment. Writ petition is disposed of accordingly. ANTONY DOMINIC, Judge. ami/