Tripura

StateCommission

A/27/2016

Smt. Tandra Das - Complainant(s)

Versus

Dr. Shyamal Sarkar - Opp.Party(s)

Mr. Suman Bhattacharya, Mr. Niladri Mukherjee,Mr. Arpan Das

08 Mar 2017

ORDER

​

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.27.2016

 

 

1. Smt. Tandra Das,

D/o Sri Kshitish Chandra Das

of Ramnagar Road No.8, P.O. Ramnagar,

P.S. West Agartala, West Tripura, Agartala,

 

 

… … … … Appellant/Complainant/Petitioner

 

 

1. Dr. Shymal Sarkar,

S/o Late Naresh Sarkar

of Ramnagar Road No.5/6,

P.O. Ramnagar, P.S. West Agartala,

West Tripura, Agartala,

 

… … … … … Respondent/Opposite Party No.1

 

Present

 

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

 

 

For the Appellant:                       Mr. Suman Bhattacharya, Adv.

For the Respondent:                Absent.

Date of Hearing and Delivery of Order: 08.03.2017

O R D E R [O R A L]

 

 

U.B. Saha, J,

The present appeal is filed by the appellant Smt. Tandra Das under Section 15 of the Consumer Protection Act, 1986 against the judgment dated 20.01.2016 passed by the Ld. District Consumers Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No. C.C. 55 of 2014 along with an application for condoning the delay of 114 days in preferring the appeal against the aforesaid judgment.    

2. Heard Mr. Suman Bhattacharya, Ld. Counsel appearing for the appellant (hereinafter referred to as complainant/petitioner).
3. The facts for filing of the present appeal, briefly stated, are that the appellant being complainant visited the chamber of Dr. Shyamal Chandra Sarkar on 18.03.2014 with severe pain around the anus. Although, she has not specifically stated what amount she paid to the doctor, but admittedly, she visited the private chamber of the aforesaid doctor. In the complaint petition and also in the evidence, the appellant-complainant has stated that the doctor received the professional fees as consultation fees, but she did not mention the amount and also no receipt was produced in support to her contention. In the letterhead of Dr. Shyamal Sarkar alias Dr. Shyamal Chandra Sarkar, his qualification was written as MBBS, MD (AIIMS), New Delhi. As per the note in the prescription, there was severe pain around anus with BP-130/80 and three medicines were prescribed along with one injection, Dolonax. Subsequent thereto, the complainant did not visit the opposite party no.1 Dr. Shyamal Chandra Sarkar and also did not inform regarding her condition. Thereafter, she visited the chamber of one Dr. Rajib Ghosh on 26.03.2014 i.e. after eight days. Dr. Ghosh referred her to surgeon for further treatment. He also prescribed her two medicines. The complainant then went to Kolkata for better treatment and visited Peerless Hospital and Research Centre Ltd. and then at Apex Institute of Medical Sciences, where she was treated by Dr. Shibnath Mondal, Surgeon and she spent a huge amount. Later, the complainant filed the complaint petition for medical negligence of opposite party no.1 and demanded an amount of Rs.10,14,400/-.
4. The opposite party no.1 appeared and filed his written statement denying the claim of the complainant. It is stated in the written statement that the complainant did not pay any professional fees to the opposite party no.1, as, she was known to him. Therefore, she was not at all a ‘consumer’ and also did not visit after 7 days as advised by the opposite party no.1.
5. Complainant examined herself as one of the witness as P.W.1 and produced the prescription issued by the opposite party no.1, treatment report, discharge summary, photocopy of FIR, advocate’s notice etc. which were exhibited and marked as Exhibit-A series.

Complainant in support of her claim also produced the FIR, Air tickets, Prescription report of Apex Institute of Medical Sciences, Report of Peerless Hospital and bills, Bidhan Nagar City Police Passenger copy and colour photocopy which were exhibited and marked as Exhibit-1 series.

On the other hand, the opposite party no.1 examined two witnesses. One was opposite party no.1, himself as O.P.W.1 and another one was Dr. Jayanta Kr. Das, Secretary cum Registrar of Tripura State Medical Council as O.P.W.2.

6. Admittedly, complainant visited the chamber of Dr. Shyamal Chandra Sarkar on 18.03.2014 with severe pain around the anus. Doctor advised the complainant and prescribed her some medicines. But the complainant did not get any relief. So, she went to another doctor, Dr. Rajib Ghosh who examined her and referred her for surgery. Then she went to Kolkata and visited the Apex Institute of Medical Sciences where she was treated by Dr. Shibnath Mondal, Surgeon. As per discharge summary of the Apex Institute of Medical Sciences, patient, the appellant herein, presented Large Necrotic abscess heavy pain in the perennial area seen by the doctors of Tripura who gave antibiotics without examining the local area, according to the patient. From the evidence of the complainant, it is found that allegation against the opposite party no.1 is that, without examination of local area he prescribed antibiotics and then it developed into surgical case and the petitioner had to go to Kolkata and spent a huge amount. The discharge certificate of the complainant issued by the Apex Institute of Medical Sciences does not mention anything about the damage of her anus i.e. the perennial area due to late treatment. There is also nothing mentioned in the prescription as well as in the discharge certificate that the complainant was wrongly treated by the opposite party no.1. The complainant also lodged the complaint before the Tripura Medical Council against the opposite party no.1. The Tripura Medical Council on careful examination reported that the opposite party no.1 treated adequately as a careful doctor. The said report of the Tripura Medical Council was challenged by the complainant before the High Court of Tripura and as per decision of the Hon’ble High Court, fresh enquiry is to be conducted and opportunity is to be given to the petitioner patient for hearing. It is true that Dr. Shyamal Chandra Sarkar was negligent when he did not notice the affected area, but this negligence did not cause any damage to the complainant Tandra Das. After eight days when the pain did not subside, then she visited another doctor, namely, Dr. Rajib Ghosh and the said doctor advised her for surgical intervention. After surgical intervention, she was cured. It is no way mentioned in the complaint petition that such type of surgical intervention cannot be done in Tripura. Negligence is careless state of mind, which may amount to indifference. It is careless conduct without reference to any duty to take care. Mere allegation of negligence itself is not enough to fasten a person without any cogent evidence.
7.   The Ld. District Forum after considering the evidence on record as well as the documents exhibited dismissed the complaint case stating, inter alia, that “There is no medical opinion to support that the prescribed antibiotics caused any damage to the affected area and there is no medical opinion to support that the antibiotics were wrongly prescribed and were not supportive in the treatment.” Being aggrieved by the judgment of the District Forum, the instant appeal is filed along with a condonation petition as stated (supra).
8. In the condonation petition, it is stated that the impugned judgment was delivered on 20.01.2016 and just after passing of the judgment, the Ld. Advocate of the complainant informed her over telephone that the Ld. District Forum dismissed her complaint. Receiving the said information, the petitioner informed her Ld. Advocate that she could not move alone, as there were wounds on her hips. After recovery/getting some relief, she came to the chamber of her Ld. Advocate. On 11.05.2016, as she could move slowly at that point of time, she asked him about the judgment. On that date, the Ld. Advocate requested her to obtain a certified copy of the order passed by the District Forum, as the judgment which was supplied by the District Forum was misplaced by the Advocate clerk. Accordingly, the Ld. Advocate of the petitioner filed a petition for obtaining a certified copy of that judgment on 12.05.2016. The same was prepared for delivery on 17.05.2016 and it was taken delivered on 18.05.2016. Thereafter, the Ld. Advocate of the petitioner asked her to come at his chamber for preparation of the appeal, but the petitioner informed him that some puss formed in her wound and she was suffering from pain. She requested him to give her an appointment in the last week of May. Accordingly, the Ld. Advocate of the petitioner asked her to come on 29^th of May and on that date, the petitioner came to his chamber. After discussion with the complainant, her Ld. Advocate then asked her to come in the morning of 5^th June as he wanted to see the file within that time. In the morning of 5^th June, the Ld. Advocate of the petitioner informed her over telephone that due to some personal preoccupancy, he could not sit in his chamber on that date and asked her come on 11^th June. Accordingly, on that date, the instant appeal was dictated and filed on 13.06.2016.
9. Perused the condonation petition. From the whole condonation petition, it is not clear to us who was the Ld. Advocate to inform the petitioner regarding the result of the complaint case. Not only that, though the judgment was delivered on 20.01.2016, the complainant first time met with her Advocate on 11.05.2016. For explanation of this period, though she stated that she could not move alone, but in support of her that contention, neither any prescription, nor any medical certificate is submitted along with the application for condonation of delay. It is further stated that the copy of the judgment which was delivered to the Ld. Advocate of the complainant just after passing of the judgment was misplaced by the Advocate clerk, but it is nowhere mentioned in the condonation petition, who was that Advocate clerk and how the copy of the judgment got misplaced. It also appears from the condonation petition that though the complainant nominated her Ld. Advocate on 11.05.2016, but then also, the appeal was not filed thereafter, on the ground that the certified copy which was supplied by the Ld. District Forum was misplaced by the Advocate clerk. Not only that, either for this or that ground, the Ld. Advocate dictated the memo of appeal only on 11.06.2016 and the same was filed on 13.06.2016 i.e. after a delay of 114 days from the due date of limitation. It appears from the condonation application that the same was signed by one Arpan Das, Ld. Advocate. Even after filing of the condonation petition along with appeal, an application for amendment of cause-title was filed on 15.07.2016.
10. There is no doubt that an application for condonation of delay has to be examined liberally subject to ‘sufficient cause’ is shown. The explanations which have been given in the condonation petition for delay in filing the appeal, is not at all satisfactory, rather according to us, neither the complainant nor the Ld. Advocate has taken up the issue of filing appeal in time, seriously.
11. As already stated, there is a statutory provision enabling the Commission to entertain the appeal even after the expiry of the statutory period prescribed for filing an appeal, provided the appellant satisfies that there was ‘sufficient cause’ for not filing the same within time. The words 'sufficient cause' occurring in proviso to Section 15 of the Act, are of utmost significance. As per settled law, culled out from various judicial decisions, the above expression, 'sufficient cause' though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudication of his grievances on the merits of his appeal for causes beyond his reasonable control, which means the cause is bonafide and beyond the control of the appellant. There is no hard and fast rules, what should be the 'sufficient cause' in a given case.
12. Even if we take a liberal approach, then also according to us, in the condonation petition, there is nothing regarding the name of the Ld. Advocate, who communicated the result of the complaint case to the complainant and the name of the Advocate clerk, who misplaced the copy of the judgment obtained from the District Forum. The reasons stated in the condonation petition elicit nothing satisfactorily to condone the delay in filing the appeal.

Considering the entire facts and circumstances, we are of the opinion that the delay in filing the instant appeal has not been properly explained. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura