Haryana

StateCommission

A/788/2014

Dr. Rajiv Gupta - Complainant(s)

Versus

Badan Singh alias Madan Singh - Opp.Party(s)

Mr.Adarsh Jain, Advocate counsel for appellant

12 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

                                                 

First Appeal No.788 of 2014

Date of Institution: 05/09.09.2014

                                                          Date of Decision: 12.01.2017

1. Dr. Rajiv Gupta
2. Dr. Sangita Gupta

Both doctors of Bala Ji Nursing Home, New Sohna Road, Opposite Civil Hospital, Palwal District Palwal.

     …..Appellants

                                                Versus

1. Badan Singh alias Madan Singh son of Budhi Ram.
2. Master Abhisekh (minor) son of Badan Singh alias Madan Singh (appellant No.2) through his father and next friend and natural guardian namely Badan singh alias Madan Singh, r/o village Aharwan Tehsil Palwal District Faridabad.
3. National Insurance Company Ltd., Branch Office at 5-C/1 & 2 B.P. Railway road, NIT Faridabad w.e.f. 1.07.2005 upto 30.06.2005 vide policy No.361101/46/05/8700000123.

         …..Respondents

CORAM:   Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.

 

Present:-    Mr.Adarsh Jain, Advocate counsel for appellant.

                   Mr.Sanjay Verma, Advocate counsel for respondent Nos.1 and 2.

                   Mr.G.D.Gupta, Advocate counsel for the respondent No.3.

 

F.A.No.709 of 2015

Date of institution: 20.08.2015

Date of Decision: 12.01.2017

 

1. Badan Singh alias Madan Singh son of Budhi Ram.
2. Master Abhisekh (minor) son of Badan Singh alias Madan Singh (appellant No.2) through his father and next friend and natural guardian namely Badan singh alias Madan Singh, r/o village Aharwan Tehsil Palwal District Faridabad.

…..Appellants

Versus

1.      Dr. Rajiv Gupta

2.      Dr. Sangita Gupta, both doctors of Bala Ji Nursing Home, New Sohna Road, Opposite Civil Hospital, Palwal District Palwal.

3.      National Insurance Company Ltd., Branch Office at 5-C/1 & 2 B.P. Railway road, NIT Faridabad w.e.f. 1.07.2005 upto 30.06.2005 vide policy No.361101/46/05/8700000123.

…..Respondents

CORAM:   Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.

 

Present:-    Mr.Sanjay Verma, Advocate counsel for appellants.

                   Mr.Adarsh Jain, Advocate counsel for respondent Nos.1 and 2.

                   Mr.G.D.Gupta, Advocate counsel for the respondent No.3.

 

                                      O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

 

          Vide this order above mentioned two appeals, bearing Nos.788 of 2014 and 709 of 2015, will be disposed of, as both are directed against the order dated 27.06.2011 passed by the District Consumer Forum, Palwal (in short ‘District Forum’).

2.      It is alleged by complainant that his wife namely Smt. Shakuntla (since deceased) took regular treatment during pregnancy from opposite party (O.P.) Nos.1 and 2.  Ultrasound was conducted on 10.11.2015 and  thereafter on 27.01.2006 from Super Ultra Sound, as per advise of O.P.Nos.1 and 2. She (wife of complainant No.1) was admitted on 08.02.2006. For labour pain injection was given by O.P. Nos.1 and 2, but, due to their negligence condition of his wife worsened. When they complained about her condition, she was shifted from Balaji Nursing Home to Diamond Hospital, Palwal, but, that hospital did not admit her. He took his wife to Escorts Hospital at Faridabad where she remained as indoor patient upto 18.02.2006. Rs.3.50/- lacs were spent on her treatment. When there was no improvement she was referred to A.I.I.M.S, New Delhi, where she remained admitted from 18.02.2006 to 12.03.2006 i.e.  till her death.  There was clear cut negligence on the part of O.P.Nos.1 and 2.  They suffered harassment mentally as well as physically.  He (complainant No.1) lost love and affection of wife and complainant No.2 of mother.  They be granted Rs.Ten lacs as of compensation on account of their negligence.

3.      Only opposite party Nos.1 and 2 filed separate replies controverting their averments and alleged that deceased visited their nursing home on 10.11.2015 and 27.01.2006 alongwith ultrasound report.   As per ultrasound reports, child in the womb was proper. On 08.02.2006 she visited there hospital for delivery and was given injection (Sytntociaion) (oxytocin) I ampule in one glucose bottle of 500 ml. Thereafter, she developed respiration problem. Oxyzen was administered to her and it was advised that she be taken to higher centre. She was referred from their hospital (Bala Ji Nursing Home Palwal) to Diamond Hospital, Palwal, but, concerned doctors of hospital did not admit the wife of complainant. His wife remained admitted in Escorts hospital from 08.02.2006 to 18.02.2006. After discharge she expired on 12.03.2006. Her death was due to mass (tumor) in right main bronchus, so there was no negligence on their part.  Preliminary objections about maintainability of complaint, concealing of true facts  etc. were also raised and requested to dismiss the complaint.

4.      O.P. No.3 adopted their reply.

5.      After hearing both the parties, learned District         Forum, Palwal allowed the complaint  vide impugned order dated 27.06.2011 and directed as under:-

 “In view of above discussion and reasons the Ops who have been found guilty of medical negligence & deficiency in services, are directed to compensate the complainants with an lump-sum amount of Rs.four lacs (Rs.400000/-) with interest @ 5% from the date of this complaint i.e. 24.07.2006 within 30 days from the receipt of copy of this order failing which amount shall carry interest @ 12%.”

6.      Feeling aggrieved therefrom both the parties have preferred the aforesaid appeals.

7.      Appellants of appeal No.788 of 2014  have filed an application for condonation of delay of 1125 days in filing appeal.  It is alleged that  they applied for certified copy of the order dated 27.06.2011 and was received on 07.07.2011. They engaged counsel for filing appeal and handed over draft of Rs.25,000/-.  The appeal was prepared on 27.08.2011, but, inadvertently it mixed up with pending matters and was located on 27.07.2014.  In this way delay was not intentional and may be condoned.

8.      Appellants in appeal No.709 of 2015  have filed application for condonation of delay of 1475 days in filing appeal.  It is alleged that  they approached counsel at Chandigarh to file the appeal and their counsel told that he would inform them after decision of the case.  Thereafter when status of case was enquired they come to know that counsel had expired and their appeal was not filed.  Thereafter they filed present appeal through present counsel.  In this way delay on their part was not intentional and may be condoned.

9.      Arguments heard.  File perused.

10.     Learned counsel for appellants  in appeal No. 788 of 2014  vehemently argued file mixed up with pending/admitted matters and was located on  27.07.2014. Thereafter this appeal was filed, so delay of 1125 days may be condoned.

11.        Learned counsel for the appellants in appeal No.709 of 2015 vehemently argued that counsel engaged by  them had expired and appeal was not filed by him. Thereafter they filed appeal through present counsel, so delay of 1475 days in filing appeal may be condoned.

12.              These arguments are devoid of any force. Perusal of file shows that counsels of the parties were well  aware that matter was decided, but,  both parties did not file appeal within time.  The reasons mentioned in the applications are not plausible as not supported by any document. It appears that this plea has been raised just to cover inordinate delay. 

13.              A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

14.              The inordinate delay of 1125 and 1475 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

 

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

    In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

          Taking into consideration the pleas raised by appellants in the applications it is not a fit case to condone the delay of 1125 days in appeal No.788 of 2014 and of 1475 days in appeal No.709 of 2015. Hence both applications are dismissed.

15     Resultantly, these appeals area also dismissed as time barred.

16.  The statutory amount of Rs.25,000/-  deposited at the time of filing the appeal No.788 of 2014 be refunded to the appellants against proper receipt and identification in accordance with rules.

 

January 12th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.