KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

                            VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO.694/10

JUDGMENT DATED 25.7.2011

PRESENT

JUSTICE SHRI.K.R.UDAYABHANU                --  PRESIDENT

SHRI.S.CHANDRAMOHAN NAIR                    --  MEMBER

Sathiyamma,                                                       --APPELLANT

W/o Sivankutty Nair,

Satheesh Bhavan, Ulanadu,

Kulanada, Pathanamthitta.

(By Adv.P.Rajmohan)

               Vs.

1.    Medical Superinteendent,                             -- RESPONDENTS

N.S.S. Medical Mission Hospital, 

Pandalam.

(By Adv.K.Murlidharan Nair)

2.    Dr.K.E.Moorthy.M.S.,

             -do-do-

3.    The Manager,

Oriental Insurance Co.Ltd.,

P.B.No.26, Rajeswary Complex,

Perunna,Changanassery.

(By Adv.George Mathew)

JUDGMENT

SHRI.S.CHANDRAMOHAN NAIR  : MEMBER

          The complainant in OP.47/03 before the CDRF, Pathanamthitta is the appellant herein who is aggrieved by the dismissal of the complaint vide order dated 7.10.10 by the Forum below.

          2. The complainant has approached the Forum stating that she had undergone treatment in the first opposite party hospital and that the first opposite party treated her for ulcer on her left leg and that varicose operation was done on 25.5.1999 and that inspite of treatment and  continuation of the treatment in other hospitals her condition became worse and alleging deficiency in service, the complaint was filed in 2003 claiming compensation and costs.

          3. The opposite parties filed version denying the allegations of the complainant and also contending that the complaint was barred by limitation.  It was their case that the complainant had undergone treatment and operation on 25.5.99  and the complaint was filed only in 2003 and that the said complaint was liable to be dismissed as not maintainable. On merit also the opposite parties prayed for the dismissal of the complaint.

          4. The Forum below after taking evidence dismissed the complaint on the ground that the complaint was barred by limitation since the complainant was  discharged from the first opposite party’s hospital on 7.7.99 and the complaint was filed on 24.4.03.  The forum below has found that the complainant has not adduced sufficient evidence to show that there were reason for condoning the delay as per sub section 2 of Section 24 (A)  of the Consumer Protection Act.

          5. Heard both sides.

          6. The learned counsel for the appellant argued before us that the Forum below ought to have condoned the delay in filing the complaint since the complainant was continuing the treatment after discharge from the first opposite party’s hospital on 7.7.99 and that she came to know that all the difficulties were consequent to the deficiency  in  the treatment by the second opposite party in the first opposite party hospital and hence the forum below ought to have condoned the delay of  2 years in filing the complaint before the Forum.   However, it is admitted that there was no separate petition filed by the complainant to condone the delay.

7. The learned counsel argued before us that Exts.A1 to A10 were enough to prove the fact that all the complications to the appellant/complainant occurred due to the wrong treatment meted out by the second opposite party of the first opposite party hospital and that the forum was not correct in dismissing the complaint on the mere ground that the complaint was filed belatedly.  He has also relied on the decision of the Hon. Supreme Court in V.N.Shrikhande  (Dr) Vs. Anitha Sena Fernandes  (2011 (1)  Supreme Court cases  53)  and argued before us that an opportunity ought to have been given to the complainant for filing a petition to condone the delay  showing sufficient cause.  He has also submitted before us that the lapse in not filing a separate petition is a condonable one and the Forum ought to have consisted that even if the complaint was filed after 2 years it would not defeat the claim of the complainant against the opposite parties.  He has also submitted before us that the forum below did not pass the order on merit and has dismissed the same on the ground of limitation only.

8. On the other hand, the learned counsel for the first respondent submitted before us that the forum below had considered the aspect of limitation in its entirety and that the forum below was just and correct in dismissing the complaint on the ground of limitation itself.  It is his very case that though the complainant had left the first opposite party hospital on 7.7.99 she has never turned up to that hospital and the complications that arose might have been due to the treatment she obtained elsewhere and it was not correct to say that the complainant had been following up the treatment of the first opposite party hospital.  Thus, it is argued by him that the appeal is also liable to be dismissed with compensatory costs.

          9. On hearing the learned counsel for the respective sides, we find that the complainant/appellant has a case that the forum below ought to have condoned the delay and passed the order on merits.  The learned counsel has invited our attention to the fact that the complainant was continuing the treatment and that it was only very late that she came to know that the complications were due to the wrong treatment she received from the first and second opposite parties.  We also find that the forum below has dismissed the complaint on the ground of limitation only though detailed evidence had been taken and documents were marked.    As argued by the learned counsel for the appellant, the forum has not gone into the deeper aspects of the case.  The Hon. Supreme Court in the case cited by the counsel for the appellant has made it clear that opportunity of hearing has to be given to the complainant before dismissing  the complaint on the ground of limitation so that he may seek condonation of the delay by showing sufficient cause.  In the instant case the appellant has not filed a separate petition for condoning the delay as envisaged in Sub Section 2 of 24-A of the Consumer Protection Act.  All the same, the opposite parties have also not raised a specific objection regarding the issue of maintainability on the ground of limitation.  Taking all these aspects into consideration and also respecting the citation produced by the appellant and the dictum contained in Ramnath Sao Vs. Gobardhan Sao (2002 AIR SCW 978) we find it just and reasonable that an opportunity is to be given to the complainant to file a separate petition before the forum below for condoning the delay stating the reasons and on filing the same the forum may give opportunity to the other side to file objection if any and dispose of the petition for maintainability.  If it is found that the complaint is maintainable the forum is directed to pass an order on merits.

10. In the result, the appeal is allowed. The order dated 7.10.10 in OP.47/03 is set aside.  The Forum is directed to permit the complainant to file a petition for condoning the delay showing sufficient reasons and dispose of the matter in accordance with law.  In the nature and circumstances of the present appeal, the parties are directed to suffer their respective costs.

11. The parties are directed to appear before the Forum on 31.8.2011.

The office is directed to send back the LCR along with a copy of this order to the Forum below urgently.

JUSTICE K.R.UDAYABHANU --  PRESIDENT

S.CHANDRAMOHAN NAIR  --  MEMBER