Order No. 06   Date-  28.12.2020

Record is taken up for order in connection of an application U/s 69 (2) of the CP Act, 2019 filed by the complainant praying for condonation of delay of filing the consumer complaint and admit the case.

In course of hearing Ld. Advocate for the complainant submitted that initially the complainant had doubt that there was gross deficiency in service and medical negligence on the part of the OPs with the regard to the death of Md. Wazzid Khan but the complainant did not file any consumer complaint on account of fear in capability to prove the medical negligence. She further submitted that the father of deceased Md. Wazzid Khan lodged a complaint to the West Bengal Medical Council against the OPs and Medical Council, West Bengal on conclusion of investigation held that there is gross deficiency in both infrastructure and service of the OP-1/Nursing Home. According to her, OPs 2 & 5  named Dr. Azahar Hussain and Dr. Adiraj Mallik are alternative and unani medical practicener respectively and are not registered with the West Bengal Medical Council. It is further pointed  that complainant received a letter bearing No. 2746-C/84-2015 dated 09.09.2019 from the WBMC and thereafter filled the instant consumer case on 25.11.2020 on the basis of aforesaid letter.

 Per contra the contesting OPs opposed the prayer of the complainant on the ground that the cause of action of the instant case arose on 07.09.2015 when the son of the complainant died but the instant consumer complaint is filled on 25.10.2020 beyond the period of two years. They further pleaded that no proper explanation has been given regarding condonation of long delay.  Therefore, the complaint is liable to be dismissed on this ground alone.

Section 69 (2) of the CP Act, 2019 which prescribes the period of limitation for admitting a complaint, reads under:-

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

(2) Not-withstanding 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 Commission, 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 District Commission or the State Commission or the National Commission, as the case may be, records it reasons for condoning such delay.”

Para 16 of the consumer complaint which deals with the cause of action to file the complaint reads as under:-

“16. That the cause of action firstly arose on 25.10.2015 when the patient was ill-treated and lastly on 09.09.2019 when the WBMC communicated its report evidencing gross negligence by OPs and is continue day by day till the adequate compensation is paid to the complainant.”

It would, thus, be seen that according to the complainant the cause of action arose (i) when the OPs ill-treated the patient on 25.06.2015 (ii) on 09.09.2019 when WBMC submitted its report evidencing gross negligence by the OPs and (iii) is continuing day to day till the adequate the compensation to the complainant.

It is well settled law that the cause of action begins to run when the right to sue first accrues, if filing of a complaint is best on multiple cause of action, the period limitation begins to run from the date when the right to sue first accrues. Patient was ill treated on 25.06.2015 and the WBMC communicated report evidencing gross negligence by the OPs on 09.09.2019. The cause of action for filing the instant consumer complaint arose on 25.06.2015 when the patient was ill treated. The cause of action dated 09.09.2019 which accrued the complainant before the commission cannot be continued cause of action when she has alleged that patient was ill treated on 25.06.2015 and there was gross deficiency in service and medical negligence on the part of the OPs. Thus, the complainant is required to approach the commission within two years from acquiring said knowledge.

 “In Haryana Urban Development Authority Vs. B.K. Sood  MANU/SC/1683/2005 IV (2005) CPJ 1(SC), the Hon’ble Supreme Court, referring to the provisions of Section 24A of the Consumer Protection Act, 1986, inter – alia observed as under :

“11. The Section debars any Fora set up under the Act, admitting a complaint  unless the complaint is filed within two years from the date of which the cause of action has arisen “.

In State Bank of India Vs. B. S. Agricultural Industries MANU / SC/0420 / 2009 : I (2009) CPJ 29 (SC), the Hon’ble Supreme Court, considering the provisions of Section 24A of the Consumer Protection Act, 1986, inter – alia observed and held as under :

            “8. It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a compliant’ occurring in Section 24A is sort of a legislative command to be Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.

The provisions of Section 69 (2) of CP Act, 2019 being mandatory and rather peremptory in nature, this commission has no jurisdiction to entertain a complaint after expiry of the prescribed period of limitation. Admittedly, the complainant has filed an application under sub-section (2) of Section 69 and failed to satisfies it  that  she has sufficient cause for not filing the complaint  within the prescribed period of  two years from the date on which  actual cause of action had arisen.

For the reasons stated herein, we find no merit in the application U/s 69 (2) of the CP Act, 2019 which is accordingly rejected on contested. No cost is imposed upon any of the parties. Thus MA being No. 290/2020 is disposed of.

Resultantly, the complaint case is not admitted and dismissed in limini.

It is, however, made clear that the dismissal of the compliant shall not come in any way of the complainant availing other remedy as may be available to her in law.