NCDRC

NCDRC

FA/1/2010

LAXMINARAYAN JANAKI - Complainant(s)

Versus

HEALTH SERVICES AND ORS. - Opp.Party(s)

MR HARSH KUMAR PURI

11 Feb 2010

ORDER


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIFIRST APPEAL NO. 1 OF 2010
(Against the Order dated 26/11/2009 in Complaint No. 72/2009 of the State Commission West Bengal)
1. LAXMINARAYAN JANAKIP-84, Niva Extension, Brahmapur,Kolkata-700096 ...........Appellant(s)
Versus
1. HEALTH SERVICES AND ORS.Govt. Of West Bengal, Swasthya Bhavan, Sait Lake, Kolkata-7000912. DR S.K.MAJIGC-207, Salt Lake, Sector-III,Kolkata(Behind GO'GO' Island,Tank No.13,Kolkata-913. KALIDAS MULLICK SEBAYATAN A NURSING HOME47, Ganesh Chandra Avenue,Kolkata-7000134. THE SECRETARY,KALIDAS MULLICK SEBAYATAN47, Ganesh Chandra Avenue,Kolkata-7000135. THE CHAIRMAN,KALIDAS MULLICK SEBAYATAN47, Ganesh Chandra Avenue,Kolkata-7000136. THE WEST BENGAL MEDICAL COUNCIL,Regd. Off. at 8, Lyons Range, 3rd Floor,Kolkata-700001 ...........Respondent(s)

BEFORE:

For the Appellant :NEMO
For the Respondent :NEMO

Dated : 11 Feb 2010
ORDER

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JUSTICE R.C. JAIN, PRESIDING MEMBER (ORAL) The challenge in this appeal is to the order dated 26.11.09 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the State Commission) in complaint case no. 72/09. By the impugned order, the State Commission has dismissed the complaint primarily on the ground that the complaint was filed after inordinate delay which the complainant failed to explain on record despite opportunity granted to her by observing as under:- “ Complainant is present through Ld. Advocate Mr. P. Banerjee. Heard Mr. Banerjee appearing for the complainant. In paragraph 42 of the complaint ..2.. the complainant has stated cause of action arose on December 14, 2003 when the patient expired due to lack of proper medical care and attention on the part of O.P. Nos. 2, 3, 4 & 5. As the complaint was filed much beyond the period of two years as prescribed by the Consumer Protection Act, the complainant filed an application for condonation of delay. As the said application also does not explain the long period of delay we granted liberty to file supplementary affidavit disclosing further facts and documents by order dated 05.10.2009. Adjournments were granted on 22.10.2009 and 09.11.2009, but still no supplementary affidavit has been filed. As we find that on the available materials such long delay in filing the complaint cannot be condoned and the explanation given in the application for condonation does not disclose any fact which justifies such condonation of delay of such a long period, the application is dismissed. The complaint is also dismissed accordingly.” 2. We have heard Mr. H.K. Puri, learned counsel for the appellant and have considered his submissions. It is contended by Mr. H.K. Puri that after the incident the complainant had approached the High Court of Kolkata by filing a Writ Petition No. 1229/04 which was ..3.. disposed of with liberty to the complainant to make an appropriate representation before the Director of Health Services (Administration), Government of West Bengal demanding the cancellation of the registration of the Respondent doctor for having caused the death of the husband of the complainant negligently. After that a representation was made to the Directorate of Health Service, Kolkata who in turn forwarded the representation to the West Bengal Medical Council which is presently seized of the matter. A copy of the notice dated 22.04.09 issued by the West Bengal Medical Counsel to Dr. Swapan Kumar Maji who is respondent no.2 in the appeal has been filed on record. Mr. Puri submits that the cause of action in the present case was a continuing one and the complainant was within her right to file the complaint even though there was some delay in doing so. He further submits that these facts and the material could not be produced before the State Commission as the complainant was not properly advised to do so. From the perusal of the impugned order, we find that the State Commission had granted an opportunity to the complainant to file an additional affidavit which she did not file and, therefore, the impugned order came to be passed. Counsel for the appellant states that the ..4.. complainant is now prepared to file the additional affidavit along with supporting material in order to explain the delay in filing the complaint and one opportunity is sought for this purpose. In the interest of justice, we deem it appropriate to afford such an opportunity to the complainant. 3. In the result, the appeal is partly allowed and the impugned order dismissing the complaint is hereby set aside. Complainant is granted one opportunity to file the additional affidavit with supporting material before the State Commission and after doing so, the State Commission shall consider the same and the application for condonation of delay shall be considered afresh on merit. The complainant is directed to appear before the State Commission on 17.3.10 and file the additional affidavit which she proposes to do with the relevant supporting material. The First Appeal stands disposed of. Dasti.