Chandigarh

StateCommission

A/211/2018

Dilawar Singh - Complainant(s)

Versus

Post Graduate Institute of Medical Education and Research - Opp.Party(s)

Divay Sarup, Adv.

03 Aug 2018

ORDER

   STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	211 of 2018
Date of Institution	01.08.2018
Date of Decision	03.08.2018

 

Sh.Dilawar Singh son of Sh.Baljeet Singh, R/o 328, W.No.11, Mohallan Gogoani, Near PTU Centre, Old Talwandi Road, Zira, District Ferozepur, Punjab.

                                                 …..Appellant/Complainant

                                Versus

1]  Post Graduate Institute of Medical Education & Research, Sector 12, Chandigarh through its Director.

2]  The Director, Post Graduate Institute of Medical Education & Research, Sector 12, Chandigarh.

                        ….. Respondents/Opposite Parties

BEFORE:             JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                             MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh. Divay Sarup, Advocate for the applicant/appellant/ complainant.

 

PER PADMA PANDEY, MEMBER

              This appeal is directed against the order dated 27.03.2017, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short ‘the Forum’ only), vide which, it dismissed Consumer Complaint bearing No.223 of 2017 at the preliminary stage.

2.             Facts of the consumer complaint filed by the applicant/appellant/complainant, noted by the Forum, are as under:-

“The case of the complainant is that in the year 2003, he felt uneasiness in his right eye and as such got it examined at PGI, Chandigarh vide CR NO.18878 and the doctor concerned, after check-up disclosed him that there is a Cataract defect in the eye of the complainant (Ann.C-1).  It is averred that in the year 2013, the complainant felt severe pain in his right eye and as such again visited PGI on 17.5.2013 and the doctor after check-up advised him operation (Ann.C-2).  It is also averred that on 24.5.2013, eye operation of the complainant was conducted by Dr.Amit Gupta of PGIMER, but instead of operating complainant for cataract problem, he was operated for cornea by the said doctor, which is a gross negligence on the part of the doctors of OP Institute (Ann.C-3). It is further averred that after the said operation, when the complainant was examined on 01.06.2013, it was found by the concerned doctor that complainant had developed hearing loss problem after surgery. Thereafter, on 26.6.2013, the complainant was again operated by the doctors of PGIMER for hearing loss problem but with no result (Ann.C-4).  It is submitted that on 8.1.2014, the complainant was again operated by the concerned doctors of PGIMER due to continuous problem in the eye as well as of hearing, but despite third operation of the complainant, the doctors of OP Institute failed to diagnose the eye problem of the complainant (Ann.C-5). On 01.08.2014, the complainant was provided with 80% disability certificate by the concerned doctors of OPs (Ann.C-6).  It is also submitted that on 8.1.2015, the OPs advised the complainant for artificial prosthesis and the expenses for the same has been told to be Rs.3.00 lacs to Rs.3.5 lakhs (Ann.C-7). It is pleaded that the problem still exists despite the complainant being operated three times by the doctors of the OPs.  It is also pleaded that due to negligence of the OPs, the complainant is unable to earn his livelihood for his family. The complainant sent legal notice to Opposite Parties, but to no avail.  Hence, this complaint has been filed alleging deficiency in service on the part of the Opposite Parties.”

3.             The complainant led evidence, in support of his case.

4.             After hearing Counsel for the complainant and, on going through the evidence and record of the case, the Forum, dismissed the complaint, as stated above. 

5.             Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

6.                Alongwith the appeal, the applicant/appellant has also filed an application for condonation of huge delay of 461 days, as per the applicant/appellant/complainant (as per office report 445 days) i.e. more than one year and two months, in filing the appeal.

7.             It was stated in the application for condonation of delay that the said delay has occurred due to the fact that the appellant has no knowledge of law of limitation and further he filed the application for grant of legal aid before the State Legal Services Authority, Chandigarh for filing the appeal. It was further stated that in the meantime, the papers for filing of the appeal got misplaced and this has resulted in delay. It was further pleaded that, on account of the reasons, referred to above, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer was made to condone the delay aforesaid. Application is accompanied by an affidavit of the appellant/complainant.     

8.             We have heard Counsel for the applicant/appellant/complainant and have gone through the entire record of the case very carefully.

9.             After going through the record of the case, we are of the view that the averments made in the application i.e. no knowledge of law of limitation ; application filed for grant of legal aid before the State Legal Services Authority ; papers for filing the appeal got misplaced and also in the affidavit are vague. Under above circumstances, it is held that despite the fact that the applicant/appellant/complainant was well aware of passing of the impugned order by the Forum, it did not exhibit due diligence, to file an appeal, within the prescribed period of limitation and bald pleas have been taken in the application aforesaid, which are not sustainable in the eyes of law. Moreover, ignorance of law is never a valid excuse. No sufficient cause is made out, from the averments, contained in the application, for condoning the delay. The applicant/appellant did not act, with due diligence, resulting into delay of 461 days, as per the applicant/appellant (as per office report 445 days), in filing the appeal, which is about more than one year and two months, beyond the prescribed period of limitation. The cause set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible.  The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 461 days, as per the applicant/appellant (as per office report 445 days), in filing the appeal, cannot be condoned. The Hon’ble Supreme Court in Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Co. Ltd. & Anr., Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, under similar circumstances, had refused to condone the delay of even 13 days, as no sufficient cause was shown therein. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.

10.           Now the question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of huge delay of 461 days, as per the applicant/appellant (as per office report 445 days), in filing the same (appeal).  The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;

“Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:

“24A. Limitation period—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainants 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 complaint 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.”

It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

11.           The principle of law, laid down, by the Apex Court in State Bank of India’s case (supra), is equally applicable to the filing of an appeal, under Section 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in  State Bank of India’s case (supra).

12.           For the reasons recorded above, the application for condonation of delay, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.

13.           Certified copies of this order, be sent to the parties, free of charge.

14.           The file be consigned to Record Room, after completion

Pronounced.

August  3^rd, 2018.                                                   

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 (PADMA PANDEY)

        MEMBER

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