STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Vivek Saigal S/o Late Sh. Ashok Kumar Saigal R/o House No.3036, Ground Floor, Sector 44-D, Chandigarh.

   …Appellant/Complainant.

V e r s u s

1]  Max Super Speciality Hospital (Mohali), A Unit of Home Trail Estates Private Limited, Near Civil Hospital Mohali, Phase-6, Mohali (Pb.) through its Managing Director.

2]  Max Super Speciality Hospital (Mohali), A Unit of Home Trail Estates Private Limited, Near Civil Hospital Mohali, Phase-6, Mohali (Pb.) through its Medical Superintendent.

3]  Dr. Sanjay Mishra, Neurologist, Max Super Speciality Hospital (Mohali), A Unit of Home Trail Estates Private Limited, Near Civil Hospital Mohali, Phase-6, Mohali (Pb.).

4]  New India Insurance Company Limited, SCO No.36-37, Sector 17-A, Chandigarh.

5]  New India Insurance Company Limited, SCO No.36-37, Sector 17-A, Chandigarh.

…Respondents.

6]  Indus International Hospital, Chandigarh-Ambala Highway No.22, Derabassi (Mohali) 140507.

…..Performa Respondent.

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MR. RAJESH K. ARYA, MEMBER.

ARGUED BY:-     

Sh. Harsh Nagra, Advocate for the appellant – on VC.

Sh. Vivek Saigal, appellant in person.

Sh. G. S. Rangi, Advocate for respondents No.1 & 2.

Sh. R. C. Gupta, Advocate for respondents No.4 & 5 – on VC.

Sh. Hitesh Chhabra, Advocate proxy for Sh. Jasdeep Singh, Advocate for respondent No.6.

Respondent No.3 exparte vide order dated 07.05.2024.

PER  RAJESH  K. ARYA, MEMBER

                   Instant appeal has been filed by the complainant - Sh. Vivek Saigal (appellant herein) against order dated 07.03.2023 passed by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission) in Consumer Complaint No.497 of 2022 vide which Miscellaneous Application bearing No.85 of 2023 filed by him seeking direction to opposite parties No.1 to 3 for placing on file the ‘Fluid Resuscitation’ record pertaining to the services provided to him, has been dismissed by the District Commission on limitation. The said order dated 07.03.2023 reads thus:-

          “The Complainant has filed Misc. Application No. 85 of 2023 for a direction to the OP No. 1 to 3 for placing on file the ‘Fluid Resuscitation’ record pertaining to the services provided to the complainant  by OPs No. 1 to 3, EMS services at site as alleged in their reply (written version). OPs No. 1 to 3 has not file any reply to this Miscellaneous Application  despite providing many opportunities to them for the same.

          Complainant stated before the bench that OPs never conducted any ‘fluid resuscitation’ and therefore OPs No. 1 to 3 could never be able to bring the same on  record. So, the complainant is blowing hot and cold through the same breathe, in one breathe, he is stating that ‘fluid resuscitation’ was never conducted by OPs, and therefore, there is no record of the same with the OP and hence, OP could not be able to bring the same on record and in another breathe, Complainant is asking for a direction  to bring on file the record which was not in existence as ‘fluid resuscitation’ was never conducted by OPs as per complainant own allegation. It is but obvious, that if OPs have never conducted ‘fluid resuscitation’ test then they could not be able to bring it on record. This Commission cannot ask a party to do something which is not possible for him to do. This Commission cannot ask OP to bring on file what they themselves do not have due to its non-existence. However, if OP has taken a  stand in the written version that they have conducted ‘fluid resuscitation’ then onus to  prove the same is on them failing which adverse inference may be taken against them at appropriate time.

          However, before deciding the present Misc. Application No. 149 of 2023 on merits, it is necessary to check out whether this Misc. Application is filed within prescribed period of limitation provided under the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 or not?.

          In order to find out answer to the above mentioned issue, it is necessary to discuss the following facts and circumstances of complaint as well as Regulation 14 of Consumer Protection (Consumer Commission Procedure) Regulation, 2020.

          Regulation 14 of the Consumer Protection (Consumer Commission Procedure) Regulation 2020 provides as following:-

          14. Limitation- (1) Subject to the provisions of sections 40,41, 50, 51, 60, 67, and 69, the period of limitation in the following matters shall be as follows:-

 (i). (XXXXXXXXXXXX)

(ii). (XXXXXXXXXXXX)

(iii). (XXXXXXXXXXXX)

(iv) the period of limitation for filing any application for which no period of limitation has been specified in the Act or the rules or in these regulations shall be thirty days from the date of the cause of action or the date of knowledge.

          In the present complaint, written version is filed by O.P.s on 12.01.2023 and this Misc. Application is filed by the Complainant on 24.08.2023 which is beyond the prescribed period of limitation and also without filing any application for condonation of delay.

          Hence, in view of regulation 14 (iv) Misc. Application should have been filed on or before 11.02.2023. Hence, this Misc. Application is filed after 7 months time period whereas it should be filed within 30 days. Therefore, it is not filed within prescribed period of limitation as per Regulation 14 (1) (iv) of Consumer Protection (Consumer Commission Procedure) Regulations 2020. Moreover, complainant has not filed any application for condonation of delay. Hence, this Commission has no option but to dismiss the same being barred by limitation.

          Therefore, complainant has filed the present Misc. Application after 7 months whereas the limitation for filing the same expired on 11.02.2023 (as the cause of action arose to the complainant upon filing written version dated 12.01.2023 by O.Ps) complainant has not filed any application for condonation of delay.

          Though this application deserved to be dismissed with cost of Rs.5000/- yet taking a lenient view, cost is not imposed. Application dismissed being barred by limitation under Regulation 14 (1) (iv) of Consumer Protection (Consumer Commission Procedure) Regulation 2020.

          To come up for filing “Reply” by the complainant to the Misc. Application for deletion of name of Performa party i.e. OP No. 6  on  and awaiting the orders of Hon’ble State Consumer Commission, U.T Chandigarh on ‘Application’ for the transfer of Complaint by Complainant on 27.03.2024.”

2]                The aforesaid order has been assailed on the ground that opposite parties No.1 to 3 by misrepresentation of facts in their written statement, without placing on record any cogent proof pertaining to Fluid Resuscitation, made it as admission and acknowledgement of the complainant in Para 4 of para-wise reply of the written statement. In his written arguments, the appellant/complainant has stated that Fluid Resuscitation is the prima facie conclusive evidence of rash and negligent treatment by opposite parties on their records. It has further been stated that the complainant had not seen any activity of Fluid Resuscitation at site being eye witness and the opposite parties had created false evidence in their favour to save themselves from the liability. It has further been stated that  the opposite parties are continuously misleading the Court and laying fraud upon the Court by suppressing the material facts and by withholding the vital records and another forged document in the form of INTAKE OUTPUT CHART       placed on record. It has further been stated that  as per the opposite parties, the alleged treatment of Fluid Resuscitation was provided at site by EMS Service in the treatment records of Emergency Medical Officer Note but the complainant, being the eye witness at site, had not seen the activity of Fluid Resuscitation at site and thus, the said record is just and necessary to be brought on record, vide which the opposite parties alleged to have given Fluid Resuscitation at the site. It has further been stated that the Emergency Medical Officer who was not present at site surprisingly physically verified the other cumulative vitals i.e. BP 60/40 mmHg, unconscious, GCS8 in her notes, without bringing the EMS medical illness note on record. It has further been stated that how without IV Cannulation procedure adopted at site, the Emergency Medical Officer assumed the administering of the Fluid through IV route. Lastly, the appellant/complainant has prayed to allow the appeal and set aside the impugned order and provide entire Fluid Resuscitation record.

3]                On the other hand, on behalf of the contesting respondents/opposite parties, it has been argued that the District Commission rightly dismissed the application of the appellant/ complainant on the ground of limitation. 

4]                After considering the rival contentions of the parties and going through the impugned order, record and the written arguments, we are of the considered view that the appeal deserves acceptance and the impugned order is liable to be set aside for the reasons to be recorded hereinafter. It may be stated here that the onus of proof refers to the burden of adducing evidence or presenting proof of specific facts alleged by a party. Unlike the burden of proof, which remains constant, the onus of proof can shift during the trial based on the evidence presented by each party. Onus of proof focuses on specific facts or assertions within the case that require evidential support. However, in the case in hand, it is the case of the appellant/complainant that Fluid Resuscitation was never done by the opposite parties and forged document in the form of INTAKE OUTPUT CHART has been created. Therefore, this onus is upon opposite parties No.1 to 3 to prove that ‘Fluid Resuscitation’ was done by them, for which, the entire record of ‘Fluid Resuscitation’ pertaining to the services provided to the appellant/complainant  by opposite parties No.1 to 3 and EMS services at site, is very much necessary to discharge this onus.  In this view of the matter, we are of the concerted view that the District Forum wrongly dismissed the application of the complainant seeking directions to opposite parties No.1 to 3 to bring on record the entire ‘Fluid Resuscitation’ record vide the impugned order. Had such record been brought on record, the same would have clinched the controversy involved in the matter.

5]                For the reasons recorded above, the appeal is accepted. The impugned order dated 07.03.2023 of District Commission-II, U.T., Chandigarh, dismissing Miscellaneous Application bearing No.85 of 2023, is set aside. MA No.85 of 2023 is allowed. Direction is issued to opposite parties No.1 to 3 to place on record of District Commission, the entire record of ‘Fluid Resuscitation’ and EMS services at site on the date to be fixed hereinafter for appearance of the parties. Thereafter, the District Commission shall also give adequate opportunity to the appellant/complainant to rebut the same and shall dispose of the complaint expeditiously in accordance with law.

6]                Since the consumer complaint bearing No.497 of 2022 already stood transferred from District Consumer Disputes Redressal Commission-II, U.T., Chandigarh to District Consumer Disputes Redressal Commission-I, U.T., Chandigarh vide order dated 20.03.2024 passed by this Commission in Transfer Application No.3 of 2024, therefore, the parties are directed to appear before District Consumer Disputes Redressal Commission-I, U.T., Chandigarh on 05.07.2024, the date already fixed therein.

7]                Certified copy of this order be sent to District Consumer Disputes Redressal Commission-I, U.T., Chandigarh forthwith so as to reach there well before the date fixed i.e. 05.07.2024.

8]                Certified copies of this order be sent to the parties free of charge forthwith.

9]                File be consigned to Record Room after completion.

Pronounced

13 .06.2024

 [RAJ SHEKHAR ATTRI]

PRESIDENT

(RAJESH  K. ARYA)

MEMBER

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