NCDRC

NCDRC

FA/205/2010

LAXMINARAYAN JANAKI - Complainant(s)

Versus

DIRECTOR OF HEALTH SERVICES, GOVERNMENT OF WEST BENGAL & ORS. - Opp.Party(s)

M/S. MEHARIA & CO.

22 Nov 2010

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 205 OF 2010
 
(Against the Order dated 06/05/2010 in Complaint No. 72/2009 of the State Commission West Bengal)
1. LAXMINARAYAN JANAKI
R/o.P-84,Niva Extension, Brahmpur,
Kolkata-700096
West Bengal
...........Appellant(s)
Versus 
1. DIRECTOR OF HEALTH SERVICES, GOVERNMENT OF WEST BENGAL & ORS.
Government of West Bengal, Swasthya Bhavan, Salt Lake
Kolkata-700091
West Bengal
2. DR.S.K.MAJI,
R/o. GC-207, Salt Lake, Sector-III,Kolkatta,(Behind) 'GO' ISLAND,Tank No.13
Kolkatta-700091
West Bengal
3. KALIDAS MULLICK SEBAYATAN A,
Nursing Home Registered Under the Clinical Establishment Act 2002 and Situated at 47,Ganesh Chandra Avenue
Kolkata-700013
West Bengal
4. THE SECRETARY,KALIDAS MULLICK SEBAYATAN
47,Ganesh Chandra Avenue
Kolkata-700013
West Bengal
5. THE CHAIRMAN, KALIDAS MULLICK SEBAYATAN
47,Ganesh Chandra Avenue
Kolkata-700013
West Bengal
6. THE WEST BENGAL MEDICAL COUNCIL
Medical Council
Kolkata
West Bengal
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
 HON'BLE MR. SURESH CHANDRA, MEMBER

For the Appellant :
Mr. Ashwani Kumar and Mr. Amit Meharia, Advocates
For the Respondent :NEMO

Dated : 22 Nov 2010
ORDER

Heard learned counsel for the appellant with reference to the application for condonation of delay. In view of the submissions made, delay in filing this appeal is condoned. 2. This appeal has been filed against the order dated 06.05.2010 passed by State Consumer Disputes Redressal Commission, West Bengal (tate Commissionfor short) in consumer complaint case no.CC/72/2009. By its impugned order, the State Commission has dismissed the application of the appellant for condonation of delay in filing her consumer complaint before the State Commission. In view of the dismissal of the application of the appellant for condonation of delay in filing her consumer complaint before the State Commission, the State Commission has also dismissed the consumer complaint as time barred. The relevant portion of the impugned order is reproduced below:- he explanation given by the Petitioner in the condonation of delay application and the Additional Supplementary Affidavit do not appear to show that the cause of action continued or cause of action has been extended by reason of the order of the Medical Council intimating the hearing. The judgements in the case of Collector Vs. Mst. Katiji AIR 1987 SC 1353 and Ramesh Chandra Agarwal Vs. Regency Hospital Ltd. 2010 (1) CHN (SC) 151 do not help deciding this application. Accordingly the application for condonation of delay is dismissed and the complaint also accordingly stands dismissed. But I make it clear that this order will not prejudice hearing by the West Bengal Medical Council in the proposed enquiry. 3. In order to consider this appeal, we consider it necessary to recollect the sequence of events before passage of the impugned order. A consumer complaint bearing no.72 of 2009 came to be filed on 16.09.2009 by the complainant appellant alleging medical negligence in the treatment of her husband. Admittedly, the husband of the complainant died on 14.12.2003. After the complaint was filed along with an application for condonation of delay, liberty was granted to the complainant by the State Commission to file a supplementary affidavit for disclosing further facts but when such affidavit was not filed in spite of the liberty granted, the application of the complainant for condonation of delay came to be dismissed and consequently the consumer complaint was also dismissed vide an order dated 26.11.2009. The complainant challenged this order of the State Commission before this Commission by filing First Appeal No.1 of 2010. This Commission vide its order dated 11.02.2010 allowed appeal no.1 of 2010 partly by setting aside the order dated 26.11.2009 passed by the State Commission and the complainant was granted one opportunity to file additional affidavit with supporting material before the State Commission and after doing so, the State Commission was to consider the same as also application for condonation of delay afresh on merit. Accordingly, the complainant also filed a supplementary affidavit disclosing further facts. The opposite parties also filed affidavit in the matter. After considering the record before it and the submissions made by the parties, the State Commission has passed the impugned order on 06.05.2010, which is under challenge before us. 4. The point, which arises for our consideration in the present appeal, is as to whether there was ufficient causefor condonation of delay in filing the complaint before the State Commission in the present case. It is to be noted that the cause of action in this case arose as early as on 14.12.2003 on the death of the husband of the complainant. The complainant appellant made grievance both before the Director of Health Services of the West Bengal Medical Council and ultimately filed a writ petition before the High Court. On 25.08.2004, the Honle High Court at Kolkata disposed of the petition no.1229 of 2004 of the complainant by directing the complainant to make a representation before the Director of Health Services. The complainant was also granted liberty to initiate appropriate proceeding before the appropriate forum demanding payment of compensation for any loss and damage allegedly suffered by the complainant. Directions of the Honle High Court as contained in Annexure filed by the appellant may be reproduced as under:- aving heard the learned counsel appearing for the respective parties and considering the facts and circumstances of this case. I dispose of this writ petition by granting liberty to the petitioners to submit an appropriate Representation before the Director of Health Services (Administration), Government of West Bengal demanding the cancellation of the registration of the Respondent No.3 and/or removing and/or striking out the name of the said Respondent No.3 from the Registrar of the registered Nursing Homes in West Bengal maintained by the Respondent No.1, within a period of 2 weeks from date and if such Representation is filed on behalf of the petitioners within the time stipulated above, then the said Director of Health Services will consider and dispose of the same without any further delay but, positively within a period of a weeks from the date of submission of such Representation by the petitioners herein. Needless to mention, the said Director of Health Services shall base a reasons order in the matter after giving to opportunity (illegible) to all the intentionally rule including the petitioners and a copy of the side reasoned (illegible) also be communicated to the petitioners within a week from the date of such order. The petitioners herein will, however, also be at liberty to initiate an appropriate proceeding before the appropriate Forum demanding payment of the compensation for any loss and demand allegedly suffered by the said petitioners. With the aforesaid observations and directions, this writ petition stands disposed of. 5. It is seen that ultimately the West Bengal Medical Council by its order dated 22.04.2009 communicated an order asking the concerned doctor to answer in writing the charges against the doctor and also to bring his certificate of registration in original as also updated registration certificate and to submit the same before the hearing of the case by the West Bengal Medical Council. It was submitted on behalf of the complainant before the State Commission that by reason of pendency of the proceeding before the West Bengal Medical Council, the cause of action in the matter is continuing. However, the State Commission was not convinced with the ground put forth and observed that the cause of action in the matter before the State Commission could not be held to be continuing in view of the High Court order passed on 25.08.2004 and the West Bengal Medical Council reopening the matter by its notice dated 22.04.2009. It is further observed that proceeding before the forum is not dependent upon any action of the West Bengal Medical Council initiated six years after the incident, namely, the alleged medical negligence. Not feeling satisfied with the reasons and the explanation given by the complainant for delay in filing her consumer complaint before it, the State Commission dismissed the application for condonation of delay and simultaneously the consumer complaint as well vide its impugned order. 6. We have heard learned counsel for the appellant and have considered his submissions made before us. The main grounds on which challenge has been made to the impugned order may be stated as under:- (i) Because the learned State Commission failed to appreciate that National Consumer Disputes Redressal Commission remanded back the matter to the learned State Commission for consideration of the application for condonation of delay afresh on merits after considering the merits in submissions of the appellant that after the death of the husband of the appellant, the appellant had approached the High Court of Kolkata by filing a writ petition no.1229/04 and also made a representation as per the direction of the Honle High Court to the Director of Health Service and then granted an opportunity to the appellant to file an additional affidavit explaining all these factor for seeking condonation of delay. (ii) Because the learned State Commission failed to appreciate that the cause of substantial justice deserves to be preferred over the technicalities when substantial justice and technical consideration are pitted against each other. (iii) Because the learned State Commission failed to appreciate that the expression sufficient cause as envisaged under section 24A (2) of Consumer Protection Act 1986 should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause. (iv) Because the learned State Commission failed to appreciate that while dealing with the application for condonation of delay, the consideration should be the sufficiency of the cause and not the length of the delay. (v) Because the learned State Commission failed to appreciate that delay in filing the complaint was neither deliberate nor intentional on part of the appellant and it was her state of mind and the responsibilities she was burdened with after the loss of her companion, which deprived her from taking proper action at a proper time. 7. It is to be noted that in the present case the complainant appellant was required to show ufficient causewith reference to the delay in filing her complaint before the State Commission as required by section 24A (2) of the Consumer Protection Act. We have gone through the impugned order of the State Commission, which is a well-reasoned order and it is clear that the complainant appellant failed to show ufficient causejustifying the delay of almost four years in filing her complaint. In this context, it would be appropriate to reproduce the relevant portion from the impugned order which amply clarifies the position in this regard:- am unable to find how the cause of action of the present proceeding before this Commission can be held to be continuing in view of the Honle High Court order passed on 25.08.2004 only because the West Bengal Medical Council has reopened the matter by its notice. The proceeding before the Forum neither is dependent upon any action of the West Bengal Medical Council initiated six years after the incident namely medical negligence. Moreover, order of the Honle High Court is clear that the Petitioners thereby were granted liberty to submit an appropriate demands with further directions that if such representation is filed on behalf of Petitioners within a period of two weeks from the date of the said order, then the said Director of Health Services was to consider and dispose of the same without any further delay and positively within a period of four weeks from the date of said representation. The said order further provided that the Petitioners were at liberty to initiate an appropriate proceeding before the appropriate Forum demanding payment of compensation for any loss and damage allegedly suffered by the Petitioners. Therefore, such liberty was granted to approach this Commission for payment of compensation and I find no reason of the complainant for not initiating the present proceeding within a reasonable time from the date of the said order of the Honle High Court. The present notice from the West Bengal Medical Council cannot be treated as a fact extending the cause of action for the present Commission particularly when admittedly the death occurred on 14.12.2003 and the present Petitioner obtained a liberty from the Honle High Court long back on 25.08.2004 for initiating the proceeding for compensation was not initiated after the order was passed by the Honle High Court. 8. We do not find any reason or ground being put forth on behalf of the appellant, which would justify our interference with the impugned order. We agree with the learned counsel for the appellant that consideration in such cases should be the sufficiency of the cause and not the length of the delay but unfortunately, we find that ufficient causejustifying the delay has not been established in spite of the opportunities having been afforded to the complainant appellant. In the circumstances, the appeal before us is liable for dismissal and the same is dismissed accordingly with no order as to costs.

 
......................J
R.C. JAIN
PRESIDING MEMBER
......................
SURESH CHANDRA
MEMBER

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