Date of Filing:08/10/2015

Date of Order:21/03/2016

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SHANTHINAGAR BANGALORE -  27

Dated: 21^st DAY OF MARCH 2016

PRESENT

SRI.SYED ANSER KHALEEM, B.SC., B.Ed.,LL.B.,PRESIDENT

SRI.H.JANARDHAN,B.A.L, LL.B., MEMBER

SMT.BHARATI.B.VIBHUTE, B.E(I.P.) LL.B., MEMBER

COMPLAINT NO.1709/2015

Dr. Arvind,

S/o K.B. Nagendra,

Aged about 38 years,

Residing at 42/1, 9^th Main,

4^th Cross, R.M.V. Extension,

SAdashiv Nagar,

Bangalore-560 080.                             …Complainant

V/s

1.Dr.Gunaashekar, Major,

C/o Gvg Aesthetic Health Center for

Cosmetic surgery, #884,

39^th Cross, 19^th Main,

Jananagar, 4^th T Block,

Bangalore-560 041.

2. M/s. Nova Speciality Surgery,

(Division of Nova Medical Centers Pvt. Ltd.)

Opus, 143, 1^st Cross, 5^th Block,

Koramangala,

Bangalore-34.                              …Opposite Parties 

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     Heard I.A filed by the complainant supported with affidavit. The grievances of the complainant is that when the case was initially filed before the State commission and as per the orders of the State Commission dated 19.7.2013. The complainant is dismissed with a direction to approach the competent District Forum.  However, the present complaint is filed after lapse of 397 days from the date of cause of action accrued to the complainant. Before the Hon’ble State Commission almost 8 months complaint is pending and ultimately the said complaint was disposed-off with direction to appear before the District Forum. The counsel for the O.P.No.2 raised objection stating that instead of filing complaint before the District Forum the complainant approached the Hon’ble High Court of Karnataka and ultimately Writ filed by the complainant is also dismissed as withdrawn and thereafter the complainant approached the Hon’ble National Commission on 7.11.2014. On perusal of the orders of the  Hon’ble National Commission, it discloses that being aggrieved by the orders of the Hon’ble State Commission preferred an appeal before the Hon’ble National Commission and the same was finally dismissed.  Further the Hon’ble National Commission observed that the Appellant/Complainant due to ill-advise filed the Writ Petition before the Hon’ble High Court of Karnataka and it must be borne-in-mind that more than two years have elapsed since the cause of action had arisen no grounds is made out to  condone the delay of 432 days. Therefore the First Appeal is dismissed as barred by limitation.  Under the circumstances, the following preliminary point of consideration is framed on the point of law of limitation.

2.     On the basis of pleadings of the parties, the following points will arise for our considerations are:-

1. Whether the complaint is hit by law of limitation as contemplated under Section 24 (a) of the C.P. Act?

(B) What order?

3.     Our answers to the above points are:-

POINT (A):       In the negative.

POINT (B):       As per the final order

for the following:

REASONS

POINT (A):-

4.     On perusal of the I.A. and objections and the materials placed before us, it is not in dispute, initially the complainant approached the Hon’ble State Commission to redress his grievances.  On perusal of the orders of the Hon’ble State commission it clearly given direction to the complainant by returning the complaint to the complainant with a direction to represent the complaint before the jurisdictional District Forum.  However, for the reasons best known to the complainant and the complainant approached the Hon’ble High Court in Writ jurisdiction bearing Writ Petition No.38584/2013 and ultimately the Hon’ble High Court dismissed the complaint as withdrawn.

5.     It is worth to note that, when the Writ Petition is dismissed as withdrawn, but the complainant belatedly preferred an appeal before the Hon’ble National Commission bearing Appeal No.1176/2014 and the Hon’ble National Commission in its order dated 21.5.2015 dismissed the appeal with the following observation. “It is thus clear that appellant was ill advised to file the Writ Petition before the Hon’ble High court as it must be borne-in-mind that more than two years have lapsed since the cause of action had arisen. Thirdly no ground to made out to condone the delay of 432 days.  Therefore, the First Appeal is dismissed as barred by limitation.   It is worth to note that when the Hon’ble State Commission advised the complainant and return the complainant to the complainant to file before jurisdictional District Forum, but the complainant did not file any complaint before District Forum but preferred Writ Petition before the Hon’ble High Court of Karnataka and the same was got dismissed as withdrawn. Subsequently the complainant moved to the Hon’ble  National Commission by challenging the orders of the Hon’ble State Commission and ultimately the Hon’ble National Commission also dismissed the appeal on the ground that the complaint is barred by limitation. Later the complainant preferred Special Leave Petition before the Hon’ble Supreme Court ultimately the Hon’ble Supreme court also dismissed the Special Leave Petition. The law is very clear that party to the proceedings shall be vigilant and diligent in conducting his case. When a man slept over his right the law will not lend its helping hand. Viewing from any angle the complaint is not filed within the period of limitation also on perusing of Section 24-A of the C.P. Act it reads thus:

“24-A Limitation Period  (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay:”

6.     In the light of above facts and reading the above provisions, the complaint is badly hit by law of limitation.  Accordingly, the complaint is dismissed.

POINT (C):

7.     Based on the findings given on the point No.(A) and in the result we proceed to pass the following:

ORDER

1. The complaint is dismissed. No order as to cost.
2. Send a copy of this order to both parties free of cost.

 (Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 21^st Day of March 2016)

MEMBER                 MEMBER                PRESIDENT

*Rak