Delhi

StateCommission

CC/165/2015

MR. SACHIN GANOTRA - Complainant(s)

Versus

MEDICAL SUPDT. MEHARAJA AGGERSEN HOSPITAL & ANR. - Opp.Party(s)

28 Feb 2020

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:­­­28.02.2020

 

[Time allowed to submit judgements

 in support of the cases: 16.03.2020]

                                                                                                              

                                                                   Date of decision:18.03.2020

 

Complaint No.165/2015

 

IN THE MATTER OF

 

MR. SACHIN GANOTRA

S/o Sh. Ashwani Kumar

R/o B-1/148, Phase-II,

Ashok Vihar, Delhi-110052….Complainant

 

VERSUS

 

MEDICAL SUPDT.,

Maharaja Aggersen Hospital

D-Block, Ashok Vihar, Phase-I,

•  

 

DR. SUNITA SETHI

R/o B-4/46 Ashok Vihar

Phase-II, Delhi-110052

 

Also at

A-23-A, MIG Flats

Ashok Vihar, Phase-III,

Delhi-110052 ....Opposite Party

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

Present:       Sh. Judi James, Counsel for the complainant

                   Ms. Ratna Aggarwal, Counsel for the OP-1

                   Ms. Aruna Mehta, Counsel for the OP-2

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Short question for adjudication in the complaint filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, by Mr. Sachin Ganotra resident of Delhi, for short complainant, against the Maharaja Agrasen Hospital, Delhi, and Dr. Sunita Sethi, hereinafter referred to as OP-1 and 2 respectively, is whether the OPs have been negligent in the matter of treatment to the complainant’s wife, since deceased, and if so whether the complainant is entitled for the relief claimed since the complaint has been filed much after the period of limitation prescribed under Section 24A of the Act was over. The relief claimed in the complaint is as under:-

 

It is therefore, most respectfully prayed that this Hon’ble Forum may kindly be pleased to direct the respondents:-

1. To direct the respondent/OPs to pay compensation of Rs. 50,00,000/- to the complainant for untimely death of his wife whereby he has suffered mental pain, agony, harassment and monetary loss due to their inaction, dereliction of duties as well as deficiencies in service;
2. To pay a sum of Rs. 11,000/- as litigation expenses i.e. costs of the proceedings, counsel fee and other misc expenses.
3. Award exemplary costs which can serve as deterrent upon the OPs so as to discourage them and similar organisations from misusing their might and abusing trust placed in them.
4. To award interest @ 18% per annum;
5. Any other or further relief(s) which this Hon’ble Court may deem fit and proper under the facts and circumstances of the present case be also passed in favour of the complainant and against the OPs.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The wife of the complainant since deceased was in the family way and was registered under the supervision of the OP-2. On 10.10.2010 the deceased was taken to OP-1 as the delivery of the child was expected then. The condition of the deceased by then was normal and infact the OP-2 had assured that the delivery of the child would be normal. The complainant was assured of everything normal. The OPs went to the extent of assuring the complainant that in the event of any untoward incident or happening they are ready with a team of good doctors.
4.           The allegation of the complainant is that when his wife was admitted for the purpose of delivery no doctor was available. On 10.10.2010 at about 11:10 a.m. pain started and the complainant was informed that the delivery would be done in 15 minutes. The child was born but the complainant’s wife developed complications. The OPs were not ready either with the blood required by the patient or the ventilator necessitated due to the complications developed. This negligence led to the end of the patient resulting in unending misery to the family.
5.           In these circumstances the complaint was filed before this Commission on 07.03.2015 for the compensation for the damage done to the complainant due to the negligence of the OPs. This complaint was accompanied with an application for the condonation of delay, the complaint having been filed after the statutory period, stating that the delay was owing to two folded reasons, namely, the end of the family member had caused the mental imbalance and it took substantially a long time to come back to normalcy and, secondly, a lot of papers/documents sought from the OPs were handed over very late. The death of the patient was on 10.10.2010 on which date the cause of action arose, but the complaint was admittedly filed on 07.03.2015 accounting for delay for more than two years. The OPs to whom notices were issued with the direction to file the reply on the application for condonation of delay, have vehemently resisted the complaint on this ground, apart from on merit.
6.           This matter was listed before this Commission for final hearing on 28.02.2020 when the counsel for both sides appeared and advanced their arguments, the complainant for condonation of delay and for adjudication of the complaint on merit and the OPs for dismissal of the complaint there being abnormal delay. Both sides were granted time till 16.03.2020 as prayed for, to file judgements in support of their respective pleadings.
7.           For this purpose I may advert to the provisions contained under Section 24 A of the Act. The said provision posits as under:-

 

Limitation Period-

The District Forum, the State Commission or the National Commission or the shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission as the case may be, that he had sufficient cause for not filing the complainant within such period;

Provided that no such complaint shall be entertained unless the National commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

 

8.           From the provision of the Act it is manifestly clear that the two year period material for the purpose is the date from which cause of action arose. Cause of action in the given case by the admission of the complainant arose on 10.10.2010 on which date the complainant lost his wife.
9.           The Hon’ble National Consumer Disputes Redressal Commission in the matter of Prem Prakash Goel vs. Green Carriers and Contractors (Delhi) Pvt. Ltd. as reported in II (2014) CPJ 22 (NC) is pleased to hold that the fragile explanation for the condonation of delay does not ring the bell.  Day to day explanation not having been furnished the delay cannot be condoned. Similar view was taken by the Hon’ble NCDRC in the matter of O.K. Gaur vs. Choithram Hospital and Research Centre as reported in II [2012] CPJ 222 (NC).
10.  The Hon’ble NCDRC in the FA-10/2015 in the matter of K.M. Anbarasan vs. M/s Tata AIG Life Insurance Co. Ltd. and ors. decided on 30.01.2015, while declining to condone the delay is pleased to observe as under:-

It is well settled that “sufficient cause” for condoning the delay in each case is a question of fact.

In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

In  R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed;

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.” 

Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;

It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.”

Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed;

This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.”

11.  The Hon’ble NCDRC in another matter, in the matter of C.H. Vittal Reddy versus The Manager Distt Co-operative Central Bank Ltd. [RP 2618 of 2002 decided on 04.12.2002] passed following orders:

No doubt under sub section (2) of Section 24A delay in filing the complaint could be condoned and complaint could be entertained after a period of limitation prescribed under sub-section (1) and if complainant has sufficient cause for not filing the complaint within such period, then there is a proviso to sub section (2) which says that no such complaint shall be entertained unless the Forum records its reason for condoning such delay. This proviso has been put to guard the Forum against liberal exercise of the provisions of condonation delay when it is a question of filing the complaint. Section 24A we reproduce for ready reference.

Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24A is a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.

         

12.  Having regard to the discussion done and the legal position explained I am of the considered view that the complaint having been filed on 07.03.2015 for a cause of action having arisen on 10.10.2010 is barred by limitation and sufficient cause as contemplated under proviso to Section 24(A) not having been shown to the satisfaction of this Commission, the delay is not liable to be condoned. Accordingly the delay is not condoned. Once the delay is not condoned the complaint is dismissed on the ground of limitation.
13.  Ordered accordingly.
14.  A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
15. File be consigned to records.

 

 

(ANIL SRIVASTAVA) ​

Member