Today is fixed for passing order on maintainability point.  Bothe parties file hajira.

The case in brief is that the Complainant filed a petition of complaint u/s 12 of C. P. Act, 1986 stating that Smt. Mita Kundu (Nandi), the Complainant faced some trouble in right leg and was treated by Dr. Ranadeb Banerjee ( The O.P.) at Jiban Suraksha Hospital, Bankura on and from 14-11-2012 to 17-11-2012.  The surgery was conducted by the O.P. on 14-11-2012 for fixing a plate in the lower shaft in the right leg of the Complainant.  The Complainant was released from the Jiban Suraksha Hospital on 17-11-2012 and again consulted with the O.P. on 27-11-2012 for cutting suture at the same hospital.  On the date of release the Complainant intimated to the O.P. for feeling pain and burning sensation in the right leg including in the right knee but the O.P. did not take care at all and released the Complainant from hospital.  Thereafter, the Complainant found that puses began to ooze from the operated portion and tried to contact the O.P. over cell phone but the O.P. refused to treat her.  After that the complainant consulted with other orthopedic surgeons namely Dr. Debasish Singha Roy on 05-12-2012 and Dr. Kalyan Kumar Bhuinya on 22-03-2013 and Dr. G.N. Maity on 02-01-2014 and Dr. V. Balagi Srinivasan on 11-02-2014.  Dr. Srinivasan at Apollo Hospital advised the Complainant for removal of interlocking nail (Right) tibia on 11-02-2014.  Finally the Complainant was admitted at Nightingale Hospital at Kolkata under treatment of Dr. Subir K. Bose on 11-03-2014 and interlocking nail (Right) tibia was removed on 12-03-2014.

In the mean time the Complainant also lodged a complaint before the Medical Council of India on 04-02-2013 and the said complaint was referred to the West Bengal Medical Council and the W.B. Medical Council simply warned the O.P. and did not give any relief to the Complainant.

Thereafter, the Complainant filed this case before this Forum. The Complainant has lost the capacity to fold the right leg and to walk due to the fault and carelessness of the O.P. and prayed for compensation amounting to Rs.19,24,434/- and other reliefs for the gross negligence of the O.P. Along with the complaint the Complainant also filed an application u/s 24A(2) of the C.P. Act, 1986 for condonation of delay.  In that petition the Complainant stated inter alia that the cause of action arises on and from 14-11-2012 and the Complainant could not filed the complainant within limitation period i.e. within 14-11-2014 due to loss of walking capacity on the right leg and continuous  treatment of various doctors of the Complainant and also for mental pain and agony and anxiety. 

On the other hand after receiving notice the O.P. appeared and filed a petition on the ground of maintainability of the instant case.  In that petition the O.P. stated that the instant Complaint is barred by limitation u/s 24A (2) of the C.P. Act, 1986.  The O.P. also stated that the present Complaint is barred under the principle of resjudicata and the Complainant did not come before the Ld. Forum with clean hands.

The O.P. filed some citations of Hon’ble Supreme Court and Hon’ble National Commission and Hon’ble State Commission. The O.P. also stated that the Complainant is not entitled to get any relief and prayed for dismissal of the case.

The Complainant also filed a written objection against the petition of the O.P. on maintainability point.

We have verified the complaint, the petition filed by the Complainant u/s 24A(2) of the Consumer Protection Act, 1986 for condonation of delay, the petition filed by the O.P. on the ground of maintainability, the written objection filed by the Complainant against the petition of the O.P. and the documents and citation of the National Commission and apex court filed by both the parties.     

It is admitted by the Complainant in her petition for condonation of delay (Para – 11) that cause of action arose on and from 14-11-2012.  The Complainant also stated in para - 12 that she could not filed the complaint within limitation period i.e. within 14-11-2014 due to loss of walking capacity on the right leg and continuous treatment of various doctors.  In support of her statement the Complainant filed some prescriptions of her treatment by the various doctors.

On the other hand the O.P. raised the question against the delay of 121-days of filing this case from the limitation period i.e. from 14-11-2014.

We have gone through all the documents carefully.  It is clear from those prescriptions that after the treatment of the O.P. the Complainant has consulted with others Orthopedic Surgeons on various dates namely Dr. Debasish Singh Roy on 05-12-2012, Dr. Debabrata De on 15-12-2012.  Dr. Kalyan Kr. Bhuniya on and from 22-03-2013 to 17-07-2013, Dr. G.N. Maiti on 02-01-2014, Dr. V. Balaji Srinivasan on 11-02-2014 and finally the Complainant was admitted at Nightingle Hospital, Kolkata on 11-03-2014 under the treatment of Dr. Subir K. Bose for removal of interlocking nail (Right) tibia and was discharged on 15-03-2014.  The others prescriptions dated 28-03-2014, 14-05-2014 and 23-07-2014 also show that the Complainant was under the treatment of Dr. Subir K. Bose upto 23-07-2014. As per the Complainant the limitation period of this case was over on 14-11-2014 and the Complainant has filed this case on 16-03-2015 but there is no such cogent evidence or documents filed by the Complainant which shows that the Complainant was under the treatment of doctor after 23-07-2014 or between the periods of 14-11-2014 to 16-03-2015.  Beside the treatment of various doctors there is no such explanation for such inordinate delay of 121-days in filing the present complaint after the limitation period.

Moreover, the Complainant stated that she was unable to walk which was another reason for non-filing this case within limitation period.  But in the petition of complaint the Complainant stated that she lodged a complain before the Medical Council of India on 04-02-2013 and she personally attended before the West Bengal Medical Council at the office of the Principal, R. G. Kar Medical College, Kolkata to give deposition on 27-06-2014 i.e. far before the filing of this case and she did not get any  

relief there after hearing.  So, the pleading of the Complainant for inability to walk is not believable at all.  The Complainant is failed to explain any satisfactory reason for the inordinate delay of 121-days after the limitation period in filing the present complaint.

The Complainant filed a Judgement of Hon’ble High Court of Calcutta, W.P. No.9758 (W) of 2011 with W.P. No.3993 (W) of 2013 dated 08-08-2014 but the facts and circumstances of that case is different from the present case.

The O.P. also filed some citations of Hon’ble Supreme Court and Hon’ble National Commission, as follows :-

1) 2013(4) CPR 427(SC) – “As matter of law Consumer Forum must deal with complaint on merits only if complaint has been filed within two (2) years from the date of occurred  of cause action”.

2)  2015 (2) CPR 791(NC) – “It is obligatory for Consumer Forum to examine whether complaint is within prescribed period of limitation or not.”

3)  2016(1) CPR 249 (NC) – “When statue provides for a particular period of limitation it has to be applied with all its rigors.”

4)  2017 (2) CPR 316 (NC) – “ A time barred complaint cannot be entertained”.

In this regard reliance is placed on the observation and decision made by Hon’ble Supreme Court and Hon’ble National Commission in the above mentioned cases which involves disputes to such nature.

The Complainant again stated in his written objection that at the time of filing of complaint an application for condonation of delay u/s 24 A (2) of C. P. Act, 1986 has been filed and after hearing Ld. Forum allowed the same.

After perusing that petition carefully we find that there is no sufficient cause or explanation in that petition for delay of 121-days for filing this case and as per section 24A (2) of C.P. Act “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, State Commission or the National

 Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.”  So, inadvertently the petition for condonation of delay has been allowed by this Forum.

Having considered the facts & circumstances of the case on the present position of the law we are constrained to hold and say that the instant case cannot be entertained as it is not maintainable in the eye of law.

Hence, it is

                                                                        Ordered

That C. C. No.28 of 2015 be and same is barred by limitation and hence not maintainable or entertainable in the eye of law and accordingly the case is dismissed.

Let a plaint copy of this order be supplied to the parties free of cost.