Delhi

StateCommission

CC/2027/2017

SH. ANIRUDH KR. GOSWAMI - Complainant(s)

Versus

BATRA HOSPITAL & MEDICAL RESEARCH CENTRE & ANR. - Opp.Party(s)

N. PRASHANT KUMAR NAIR

18 Jan 2018

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :  18.01.2018

Date of Decision : 22.01.2018

Complaint No. 2027/2017

IN THE MATTER OF:

Sh. Anirudh Kumar Goswami,

S/o Sh. Kailash Goswami,

R/o Vill. & PO –Motipur, (Main Road),

Distt. Muzaffarpur, Bihar,

C/o

Delhi State Legal Services Authority,

1^st Floor, Pre-Fab Building,

Patiala House Courts,

New Delhi-110001.                                                                                  ........Complainant

VERSUS

1. Batra Hospital & Medical Research Centre,

Of Ch. Aishi Ram Batra Public Charitable Trust,

1, Tughalkabad Institutional Area, Mehrauli,

Badarpur Road, Near Saket Metro Station,

New Delhi-110062.

2. Dr. P.P. Singh,

Batra Hospital & Medical Research Centre,

Of Ch. Aishi Ram Batra Public Charitable Trust,

1, Tughalkabad Institutional Area, Mehrauli,

Badarpur Road, Near Saket Metro Station,

New Delhi-110062.

3. M. S. Jha,

Batra Hospital & Medical Research Centre,

Of Ch. Aishi Ram Batra Public Charitable Trust,

1, Tughalkabad Institutional Area, Mehrauli,

Badarpur Road, Near Saket Metro Station,

New Delhi-110062.

4. Sh. Dr. Kirti Bhushan,Director General HS,

Directorate General of Health Services

Government of NCT of Delhi,

F-17, Karkardooma, Delhi-110032.                                  …….…Opp. Parties

CORAM

SH. O. P. GUPTA, MEMBER (JUDICIAL)

SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Present  :   Sh. N. Prashant Kumar Nair, Ld. Counsel for the Complainant.

PER  : SHRI ANIL SRIVASTAVA, MEMBER (G)

            Sh. Anirudh Kumar Goswami, resident of District Muzaffarpur, Bihar, for short complainant has filed this complaint before this Commission under Section 17 of the Consumer Protection Act 1986 (the Act) against Batra Hospital, hereinafter referred to as opposite parties, alleging deficiencies of service on the part of the OP and praying for relief as under :

1. Direct the opposite party no.1 to 3 to pay compensation to the tune of Rs.50 lac to the Complainant for loss of employment, ability to work and loss of income and means  of livelihood.

2. Direct the opposite party no.1 to 3 to provide / administer, immediate, appropriate and adequate treatment to the Complainant under the supervision of opposite party no.4.

3. Direct t he opposite party no.4 to ensure compliance of Directions given under prayer b. herein above b y the opposite party no.4; and /or

4. Pass such other and/further order(s) as this Court may deem fit and proper in the nature and circumstances of the case.

The facts of the case are these.

            The complainant had suffered  a train accident in 1999 resulting in the loss of his both legs.  He became 83% physically handicapped with left knee disarticulation with post crush injury and right knee and ankle ankylosis.  This caused a lot of difficulty for the complainant to pass urine.

            The complainant approached the OP-1 in May, 2005 for treatment. It is not understood why the complainant waited for six years for his treatment when he was grievously hurt due to the accident.

            The graveman of the complainant is that he was treated very inadequately. No proper care was given to him. His treatment continued for a period of three years but with no proper care. In August, 2008 he was diagnosed with Urethral Stricture and Urethral Fistula and was operated with Urethrodplasty Surgery which operation, as alleged, was conducted with utmost negligence although he was informed that the operation has been done successfully. The negligence done while conducting the operation caused, severe damage to the complainant’s urethra and also cut off part of the penile organ.  The OPs, according to the complainant, had adviced him to visit again for further surgery but the said surgery was never performed.

            The complainant had taken up the matter with several authorities for the treatment but of no avail. 

            The complainant has now filed the  complaint before this Commission on 15.12.2017 for the redressal of his grievances.

            This matter was listed before us for admission hearing on 18.01.2018 where the Ld. Counsel for the complainant appeared and advanced his arguments for the  admission of the complaint. We have perused the records of the case.

            In the first instance we note that the complaint has been filed in December, 2017 in a matter where the cause of action arose in 2008 when the operation was done.  This appears to be a hopelessly time barred case.  One has to approach the fora within two years of the cause of action.

            Section 24(1) of the Consumer Protection Act 1986 posits as under:-

[24A. 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.]

            The complainant has also filed an application for condonation of delay in filing the complaint on the ground that he did not have knowledge about the for a he may approach for the redressal of his grievances and within what time.  Secondly, the argument is t hat it is a continuous cause of action.

            We not impressed with this argument.

            It is well settled that sufficient cause for condoning the delay in each case is a question of fact. 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. 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. Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in  reported in (2010) 5 SCC 459 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. The expression "sufficient cause" employed in section 5 of the indian limitation act, 1963and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition,  (1987)2 SCC 107,  (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil( The Apex Court in , IV (2011) CPJ 63 (SC) has observed ;

            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 In , AIR 2004 SC 904, Apex Court observed: Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay.

            No sufficient grounds are made out for condoning the delay in filing the present complaint.  Accordingly the application for condonation of delay is dismissed.  Once the delay is not condoned, the complaint cannot be entertained.

            We order accordingly.

            A copy of the order be sent to the parties free of cost as statutorily required.

            File be consigned to Record Room.

(ANIL SRIVASTAVA)                                           (O.P. GUPTA)                                  

  MEMBER                                                            MEMBER (JUDICIAL)