HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This appeal filed under section 15 of the Consumer Protection Act, 1986 on 25/07/2019 by the appellant Anjali Maitra, is directed against the order No. 8 dated 27/06/2019 passed by the Learned District Forum, Kolkata, Unit III (in short, ‘the District Forum’) in connection with case No. M A/ 395 of 2018 arising out of complaint case No. CC/603/2018 whereby Learned District Forum allowed the maintainability petition filed by the opposite parties No. 1 & 2.
- Heard the Learned Advocate appearing for both the parties. Perused the record and considered.
- It is submitted by the Learned Advocate appearing for the appellant that Learned District Forum disposed of the complaint case being No. CC/603/2018 arbitrarily on the issue of absence of petition under section 24A(2) of the Act, not admitting the prayer for condonation of delay as stated in paragraph No. 15 of the complaint case No. CC/603/2018. He further submitted that the impugned order passed by the Learned District Forum is not proper and not according to law in force. He further submitted that Learned District Forum failed to exercise its judicial power so vested and armed with material irregularity. He further submitted that the impugned order was passed by the Learned District Forum without applying judicial mind on the directions of the Authority of Govt. of West Bengal about the factual state of physical, mental and pecuniary condition of the husband of the complainant during post operation period for continuing further treatment of burn injury wound caused at Kothari Medical Centre. He further submitted that Learned District Forum passed the impugned order purely misguided by the Learned Advocate of the opposite parties, ignoring the plea of the Learned Advocate appearing for the complainant. He further submitted that this appeal should be allowed and the impugned order should be set aside.
- On the contrary, Learned Advocate appearing for the respondent No. 1 has urged that the order passed by the Learned District Forum is quite legal and valid. He further submitted referring to section 24A of the Consumer Protection Act, 1986 that the period of limitation for filing the complaint petition claiming compensation is only two years from the date of accrual of the cause of action. He also submitted that sub section 2 of section 24A of the said Act provides for entertaining a complaint petition even after the expiry of two years from the date of accrual of the cause of action if the complainant had any sufficient cause for not filing the complaint within the statutory period of two years. He also submitted that the complainant did not assign any cause for not filing the complaint petition within the statutory period. He also submitted that filing of the complaint in the District Forum in violation of section 24A of the Consumer Protection Act, 1986 renders the complaint barred by law of limitation and, therefore, the same was not legally maintainable and Learned District Forum has passed the order legally as per provision of section 24A of the Consumer Protection Act, 1986.
- Therefore, the impugned order has been passed as per provision of section 24A of the Consumer Protection Act, 1986 can be sustained in the eye of law. So, the impugned order should be confirmed and the appeal should be dismissed.
- Having heard the Learned Advocate appearing for the parties and on perusal of the materials on record it appears to us that the present complainant had filed a complaint being No. CC/02/2007 against the opposite party alleging medical negligence on the part of the present opposite party in the medical treatment of her husband in January, 2005. The said case was allowed by the Learned District Forum on contest and against the order, present opposite party No. 2 Kothari Medical Centre preferred an appeal before this Commission and the said appeal was allowed in part modifying the order passed by the Learned Forum and directed to pay compensation of Rs.10,00,000/- only in place of 15,00,000/- only.
- It also appears to us that against the said order passed by this Commission, both the complainant and opposite party No. 2 filed separate revision petitions before the Hon’ble National Commission and the Hon’ble National Commission was pleased to dismiss the revision petition No. 77 of 2013 filed by the present complainant and Hon’ble National Commission was also pleased to allow the revisional petition filed by the opposite party Kothari Medical Centre. The order passed by the Hon’ble National Commission is reproduced as under :-
“12. The judgment of Supreme Court in the matter of Spring Meadows (supra) is not applicable to the facts and circumstances of this case for the reason that the said case relates to the consumer complaint filed by the parents of a minor child. In the instant case, husband of Anjali Moitra is still alive and he being major cannot be substituted by a third person as complainant unless there is power of attorney / prior authorization given by person concerned. In view of the fact that complaint itself is not maintainable on the ground of locus standi, no purpose shall be served by going into the merits of the case.
13. Looking at a problem from different angle. Supposing this consumer complaint is dismissed for any reason, the question would be whether Mr. Ajoy Kumar Moitra would be bound by this judgment ? Answer to this question is in the negative because order passed in absence of Mr. Ajay Moitra will not operate as res judicata against him and such an order would amount to violation of natural justice.
14. In view of the above, there is merit in the revision petition No.227/2013 filed by opposite party Kothari Medical Centre. The impugned orders of the State Commission as also the District Forum are without jurisdiction as the complainant did not have locus standi to file the complaint. Revision petition No. 227 of 2013 is, therefore, allowed, orders of the foras below are set aside and the complaint is dismissed.
15. Consequently revision petition filed by complainant Anjali Moitra being Revision Petition No. 77 of 2013 seeking enhancement of compensation is dismissed. This order, however, shall not come in the way of husband of the petitioner to seek legal remedy available to him in accordance with law.
16. The amount of Rs.10,00,000/- deposited by opposite party Kothari Medical Centre pursuant to the order of National Commission as a pre-condition to stay of the execution, be released to the opposite party Kothari Medical Centre along with accrued interest, if any.”
8. On bare perusal of the said order passed by the Hon’ble National Commission, it appears to us that in spite of liberty being given to the husband of the complainant by the Hon’ble National Commission, the husband of the complainant did not file any complaint during his lifetime.
9. It also appears to us that the husband of the complainant passed away on 31/12/2017 and the present complaint being No.CC/603/2018 has been filed by the present complainant Anjali Maitra on 11/10/2018 i.e. after the death of her husband.
10. In this case, the cause of action against the respondent arose in the month of January, 2005 and the legal proceeding took place till 19/11/2014 while the Hon’ble National Commission passed the order. It appears to us that no new / fresh cause of action was against the opposite parties to file the present complaint.
11. The complainant has nowhere explained in the petition of complaint as to why her husband did not file the present complaint during his lifetime and as to why she did not file the present complaint immediately after the death of her husband.
12. Therefore, it is palpably clear that the filing of the present complaint containing the claim by the complainant in the District Forum is violative of the mandatory provision of law embodied under section 24A of the Consumer Protection Act, 1986. Sub section 2 of the section 24A of the Consumer Protection Act, 1986 provides for entertaining a complaint petition even after the expiry of two years from the date of accrual of the cause of action if the complainant had any sufficient cause for not filing the complaint within the period of two years.
13. It appears to us that the complainant has not filed any application for condonation of delay explaining the cause of delay in filing the complaint case.
14. Therefore, under the facts and circumstances and on consideration of the materials available on record, it appears to us that the said complaint being No. CC/603/2018 being barred by law of limitation is not maintainable in the eye of law. As the complaint is filed in violation of the statutory period of two years as provided under section 24A of the Consumer Protection Act, 1986, the same is barred by law of limitation and, therefore, the impugned order passed on that legally barred complaint is sustainable in the eye of law and, as such, the impugned order is confirmed and the appeal is dismissed.
15. The appeal is thus disposed of accordingly.
16. Let a copy of this order be sent down to the Learned District Forum at once.
