BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of May 2012
Filed on :18-02-2012
PRESENT:
Shri. A. Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member.
I.A. No. 106/2012 in CC.99/2012
Between
1. Ponnappan Achari, : Petitioners/Complainants
S/o. K.P. Parameswaran Achari, (By Adv. P.V. Surendranath,
Kureekkattil house, Kakkoor post, Associate Law Chambers,
Koothattukulam. St. Benedict road, Cochin-18)
2. Viswas P. Achari,
S/o. K.P. Parameswaran Achari,
Kureekkattil house, Kakkoor post,
Koothattukulam.
3. Vivek P. Achari,
S/o. K.P. Parameswaran Achari,
Kureekkattil house, Kakkoor post,
Koothattukulam.
Vs
1. Koothattukulam Co-operative. :Respondents/Opposite parties
Hospital Ltd, No. E.303, (Respds. 1to3 by Adv. Vinay MenonV.,
Koothattukulam ‘Gangothri,50/1753, Ponevazhi road,
Rep. by its Secreatary. AIMS P.O., Cochin-682 041)
2. The President,
Koothattukulam Co-operative.
Hospital Ltd, No. E.303,
Koothattukulam.
3. Rajiv Gandhi Co-operative
Hospital Ltd., Unit of
Koothattukulam Co-operative
Hospital Ltd., No. E. 303,
Koothattukulam, Rep. by Secretary.
4. Smt. Smitha Sudheesh Boni, (O.Ps 4 to 6 by parties in person)
D/o. Dr. Babus Peter,
Kalarikkal house, Mangalam,
5. Smt. Saira Joseph John,
D/o. Dr. Babus Peter,
Embassery house,
Kuruppampadi P.O.
6. Sri. Peter,
S/o. Dr. Babus Peter,
Attuvellil house,
Ramamanglam P.O.
O R D E R
A Rajesh, President.
This petition has been filed by the petitioners/complainants to condone the delay of 2055 days in filing the complaint and receive the complaint on file.
2. The contentions of the petitioners/complainants.
The 1st complainant’s wife and the mother of the 2nd and 3rd complainants Geetha Kureekattil died on 25-06-2004 at the 3rd respondent/3rd opposite party hospital due to negligence, lack of skill and care and deficiency of service of the opposite parties. Inspite of earnest efforts the complainants could not obtain the copy of the documents to file the complaint in time. Finally the complainants approached the Hon’ble Chief Minister of Kerala through Public Grievance Redressal Cell and obtained the documents on 01-06-2011. The complainants obtained certified copies of the medical records from the trial Court of SC No. 569/2010 on 30-09-2011. Thereafter the complainants on 16-12-2011 caused to issue a legal notice to the opposite parties demanding compensation. The same was replied to denying the allegations. These complainants stated that it is in these circumstances there is a delay of 2055 days in filing the complaint . This petition hence.
3. The contentions of the respondents 1 to 3/Opposite parties 1 to 3.
The alleged cause of action arose on 25-06-2004. The reasons stated in the petition is unacceptable to condone the inordinate delay of 2055 days in filing the complaint.
4. The defense of the respondents 4 to 6/opposite parties 4 to 6.
Respondents 4 to 6 are unnecessary parties to this petition since their father Dr. Baboos Peter who treated the deceased breathed his last on 17-09-2011. The petitioners are liable to explain each days delay in filing the complaint as per the decisions of the Hon’ble Appex Judiciary. Instead petitions made a very wide blatant statement as to the reason for delay which has only to be rejected at the threshold.
5. We have heard the counsel for the parties and gone through the documents on record. The learned counsel for the petitioners submitted that despite repeated attempts on the part of the petitioners they could not obtain the copy of the documents to file the complaint in time. It is stated that as and when they received the copy, they filed the same in this Forum.
6. The learned counsel for the respondents 1 to 3 vehemently and vigorously contented that no reason whatever is stated sustaining the excuse of complainants for the in ordinate delay of 2055 days in filing the complaint which has not been explained in any way. The learned counsel relied on the following decisions rendered by the Higher Judiciary.
i. Union of India & Anr. Vs. British India Corporation Ltd. & Ors (2003)
9 SCC 505.
ii. V.M. Salgaocar Vs. Board of Trustees of Port of Mormugao & Anr
(2005) 4 SCC 613
iii. Gannmani Anasuya & Others Vs. Parvatini Amarendra Chodhary
& Ors. (2007) 10 SCC 296
iv. State Bank of India Vs. B.S. Agricultural Industries II (2009)
CPJ 29 (SC)
v. Huda Vs. Ushma Rani Dureja IV (2009) CPJ 304 (NC)
vi. Kerala Agro Machinery Corporation Limited Vs. Bijoy Kumar Roy & Ors. (2002) 3 SCC 165
vii. Kandimala Raghavaiah & Co Vs. National Insurance Co. Ltd & Anr (III (2009) CPJ 75 (SC)
(Full text not produced)
7. The leaned counsel for the respondents 4 to 6 challenged the very maintainability of the complaint itself. Since the present complaint is filed against the legal heirs of the deceased doctor who treated the deceased has nothing to do with the issue. Further she argued the reasons stated in the petition to obtain the certified copy of the medical records to file the complaint is unbelievable. The petitioners are entitled to obtain the same under Right to Information Act . For the same reason the contentions of the complainants can not be sustained.
8. We have carefully perused the documents submitted along with the complaint. Admittedly the death of the deceased was on 25/06/2004 wherefrom began the cause of action for this complaint. The complainants contended that time and again they attempted to obtain the copy of document through various means but they could not succeed. But nothing is on record to show that such attempts had been made or their reasons for failure if at all. Thus for reasons unexplained the complainants lulled over the matter for reasons unexplained. The law does not favour the late comer. A common principle not to be deviated from unless for substantiated reasons where in this case nothing such forthcoming. The contention of the counsel for the opposite parties 4 to 6 that the complainants ought to have approached the concerned authority under RTI Act as well sustained. In spite of plethora decisions of submitted by the opposite parties nothing has been controverted. Hence admissible which goes against the complainants.
9. The learned counsel for the respondents 4 to 6 raised a legal question whether the legal heirs of the deceased are liable for tortious liability of the deceased which calls for consideration. The counsel vehemently relied on the decisions rendered by the Hon’ble National Consumer Disputes Redressal Commission in Balbir Sigh Mukol Vs. chairman M/s. Sir Gangaram Hospital & Ors.1 (2001) CPJ 45 (NC). The Hon’ble National Consumer Disputes Redressal Commission relied on the decision of the Supreme Court in Melepurath Sankkunni, Ezhathassan Vs. Thekittil Geopalankutty Nair AIR 1986 SC 411 has held that the legal heirs of the deceased could not be brought on record as the cause of action stood extinguished. In view of the above authority there is no merit in holding opposite parties 4 to 6 as liable in this case.
10. In the result, we are of the firm view that the complainants failed to disprove any of the contentions raised by the opposite parties. In further to the above they have even failed to substantiate their own contentions in condoning the delay of 2055 days in filing the complaint. We are only to dismiss the petition. Ordered accordingly.
Pronounced in the open Forum on this the 28th day of May 2012.
Sd/- A Rajesh, President.
Sd/-PaulGomez, ember. Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
