Chandigarh

StateCommission

RP/6/2015

Dheer Dental Clinic & Ors. - Complainant(s)

Versus

Ankita Khanna - Opp.Party(s)

Neeraj Sobti

12 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Revision Petition No.	06 of 2015
Date of Institution	09.03.2015
Date of Decision	12.03.2015

 

1. Dheer Dental Clinic, SCO No.358, First Floor, Sector 44-D, Chandigarh.
2. Dr. Dhavneet Singh Dheer, Dental Surgeon & Consultant, Dheer Dental Clinic, SCO No.358, First Floor, Sector 44-D, Chandigarh.

                     …..Revision Petitioners/Opposite Parties.

Versus

Miss Ankita Khanna D/o Late Sh. K. L. Khanna R/o H.No.D-42, (Second Floor) Havz Khas, New Delhi now presently at Kothi No.192-A, Sector 4, Mansa Devi Complex, Panchkula.

…..Respondent/Complainant. 

Revision Petition under Section 17(1)(b) of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh. Neeraj Sobti, Advocate for the Revision

                Petitioners.

                Sh. Vikas Sharma, Advocate for the respondent.

 

PER DEV RAJ, MEMBER

              This Revision Petition is directed against the order dated 10.02.2015, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) in Consumer Complaint No.191 of 2014, vide which it (District Forum) disposed of the application for condonation of delay of 322 days filed by the complainant, by holding that there was no delay in presenting the consumer complaint before it after the order of this Commission dated 19.02.2014.

2.           Briefly stated the facts are that initially the complainant filed Consumer Complaint No.16 of 2014 before this Commission, which was ordered to be returned to her, vide order dated 19.02.2014, alongwith the documents,  after retaining the attested to be true photocopies of the same, for presentation, before the appropriate Forum, having pecuniary jurisdiction, to entertain and decide the same. Thereafter, the complainant approached the District Forum by way of filing consumer complaint No.191 of 2014, alongwith which, she also filed an application for condonation of delay of 322 days in filing the same. The District Forum vide the impugned order, disposed of the application by holding that the complaint filed before it on 11.04.2014 was within the permissible grace period of 30 days and, as such, the delay of 44 days stood duly explained to the last day, therefore, there was no delay in presenting the consumer complaint before the District Forum  after  passing  of  orders   dated 19.02.2014   by the State Commission.  The District Forum disposed of  the  application  for  condonation  of  delay             vide the order impugned and posted the case for 10.03.2015 for filing written statement and evidence.

3.           Feeling aggrieved, the instant Revision Petition, has been filed by the Revision Petitioners/Opposite Parties.

4.           We have heard the Counsel for the parties, and have gone through record of the case, carefully.

5.           The Counsel for the Revision Petitioners/Opposite Parties, submitted that the respondent/complainant based her application for condonation of delay on the ground that on 25.09.2012, her parents  engaged Sh. Pankaj Chandgothia, Advocate, to file a consumer complaint and pursued the matter with the Counsel for about one year. The father of the complainant expired on 11.9.2013, and the complainant and her mother came to know that they were being misled by the Advocate. He further submitted that the second ground for condonation of delay taken by the respondent/complainant was that she was minor at the time of treatment i.e. on 26.05.2011 and the present complaint was filed by her within the period of two years of attaining the majority the majority and, as such, the complaint was within the period of limitation as prescribed under the Act. The Counsel further submitted that the District Forum allowed the application taking into consideration the ground of attaining majority by the respondent/complainant. He further submitted that no authentic document in support of the first ground was placed on record. He further submitted that the District Forum failed to consider that at the time when cause of action accrued in favour of the minor (respondent/complainant) i.e. on 26.5.2011, the law provides that the legal proceedings in relation to the cause accrued, in her favour, could be instituted through her legal guardian/next friend as provided under Order 32 of the C.P.C. The Counsel placed reliance on case titled LIC Unit No.2 & Anr. Vs. Rahul Sehgal, II (2008) CPJ 219.

6.           The Counsel for the respondent/complainant submitted that the District Forum rightly held that since the late father of the respondent/complainant, was not successful in filing the complaint and, in the meanwhile, he expired leaving no option with the respondent/complainant to take cudgels against the Revision Petitioners/Opposite Parties. He further submitted that the order impugned passed by the District Forum being well reasoned, the same is liable to be upheld.

7.           It is evident that cause of action accrued to the respondent/complainant on 26.5.2011, when she was admittedly minor. No doubt, the complaint could be filed by the legal guardian/next friend of the respondent/complainant, but it is a fact that at the relevant time, the respondent/complainant being minor was suffering from disability and could not file the complaint herself. If due to one reason or the other, her legal guardian/friend could not file the complaint within the prescribed period of two years, from the date when cause of action accrued, the disability from which the respondent/complainant was suffering, did not get cured, on the ground of availability of option of filing the complaint by the legal guardian/next friend. The respondent/complainant attained the age of majority on 13.02.2013 and the complaint having been filed on 11.04.2014 was, thus, well within the period of limitation. The case titled LIC Unit No.2 & Anr. Vs. Rahul Sehgal (supra), relied upon by the Revision Petitioners/Opposite Parties is of no help to them. Para 14 of the said judgment, being relevant, is extracted hereunder:-

“14. The next submission of the learned Counsel for the appellants was that the claim lodged by the complainant was barred by limitation as Rohit Sehgal had died on 11.9.2000 while the complaint was filed by the complainant on 30.6.2005. This aspect was discussed by the learned District Forum in detail on the basis of documents. It was proved that the complainant was minor at the time of death of his father, Rohit Sehgal. He attained the age of majority on 13.9.2003 he lodged the claim with the appellants on 21.9.2003 which was repudiated by the appellants and he lodged the complaint in June 2005 i.e. within a period of two years from the date he attained the age of majority. Therefore, the complaint was not barred by limitation.”

Rather the case relied upon by the Counsel for the Revision Petitioners/Opposite Parties, supports the case of the respondent/complainant. The District Forum in its order rightly observed that “….Therefore, as per para 2 of the application as well as the affidavit dated 04.02.2014 of the complainant, disclosing her status of attaining the age of majority on 13.02.2013 and the fact with regard to filing of the present complaint within limitation after attaining majority is proved right. The OP in reply to the application has neither challenged this fact nor has argued about the complainant’s disqualification of filing the present complaint on this score.” The District Forum rightly held that there was no delay in presenting the present consumer complaint before it. Since the cause of action accrued to the respondent/complainant, who was minor and suffering from legal disability, on her attaining the age of majority, the consumer complaint having been filed on 11.4.2014 was well within limitation. Thus, we do not find any jurisdictional error, illegality or material  irregularity  in  the  order  impugned,  passed     

 

by the District Forum and the same deserves to be upheld.

8.           No other point was urged by the Counsel for the parties.

9.           For the reasons recorded above, the Revision-Petition, being devoid of any merit, is dismissed with no order as to costs. The impugned order passed by the District Forum is upheld.

10.         The parties are directed to appear before District Forum (II) on 20.03.2015 at 10.30 A.M., for further proceedings.

11.         The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 20.03.2015 at 10.30 A.M.

12.         Certified Copies of this order, be sent to the parties, free of charge.

13.                The Revision Petition file be consigned to the Record Room, after due completion.

Pronounced.

March 12, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(PADMA PANDEY)

        MEMBER

Ad