Haryana

StateCommission

A/1043/2015

DR.S.K.GHOSH - Complainant(s)

Versus

RAJESHKUMAR - Opp.Party(s)

HARISH CHHABRA

05 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1043 of 2015

Date of Institution:        07.12.2015

Date of Decision :         05.05.2016

 

Dr. S.K. Ghosh, Bengali, Chandsi Hospital, Thana Kalan Road, Kharkhoda, District Sonipat.

                                      Appellant/Opposite Party

Versus

 

Rajesh Kumar s/o Sh. Ram Dhari, Resident of Village Silana, Tehsil Kharkhoda, District Sonipat.

                                      Respondent/Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri Harish Chhabra, Advocate for appellant.

                             Shri Davender Gorsi, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Dr. S.K. Ghosh, Bengali-Opposite Party, is in appeal against the order dated November 3^rd, 2015 passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’) whereby complaint No.344 of 2014 filed by Rajesh Kumar-complainant/respondent, was accepted directing the appellant/opposite party as under:-

“….we hereby direct the respondent to pay Rs.50,000/- (Rs.fifty thousand) in lump sum to the complainant for rendering deficient services, for unfair trade practice, for harassment and under the head of litigation expenses.”

2.      Rajesh Kumar-respondent, filed complaint alleging that during 2010 he was suffering from piles. Going through the pamphlets issued by the appellant, the respondent accompanied by one Suresh, a co-villager, who also recommended the appellant for treatment of piles, the respondent approached the appellant on 17.07.2010. On examination, the appellant was stated to have diagnosed the respondent suffering from piles and assured for complete treatment. The appellant charged Rs.25,000/-. The appellant gave two injections besides some allopathic treatment and also did surgical intervention on 20.07.2010. The respondent paid in all Rs.10,000/- to the appellant. Not getting any relief, the respondent took treatment from Post Graduate Institute of Medical Sciences (PGIMS), Rohtak, where he was operated for Fissure, besides taking treatment from Dr.Baba Saheb Ambedkar Hospital, Delhi.  Alleging deficiency in service, the respondent filed complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’).

3.      The appellant/opposite party contested complaint by filing reply and having denied that the respondent ever approached him for the treatment of piles.  The appellant denied having ever treated the respondent for any disease. The appellant, however, stated himself to be a qualified doctor and medical practitioner. Denying treatment of the respondent or having charged any amount, dismissal of the complaint was prayed.

4.      The District Forum allowed the complaint as detailed in paragraph No.1 of this order. Aggrieved appellant has come up in appeal.

5.      Learned counsel for the appellant raised two fold arguments. Firstly, that the complaint was barred by time. It was stated that as per own allegation of the respondent, he was treated in July, 2010 while the complaint was filed on 10.12.2014. Thus, the complaint was barred by time and there was no request or application for condonation of delay on behalf of the respondent.

6.      The other limb of argument was that the appellant had never treated the respondent and is only being victimized by the respondent who has filed numerous complaints against him and all were found false after inquiries by the concerned authorities.

7.      Going through the first part, the respondent in the complaint has specifically stated that he approached appellant on 17.07.2010 and received treatment upto 30.07.2010. In the entire complaint no explanation has been offered as to why the complaint was being filed beyond the period of limitation. Rather, no date of accruing of cause of action has been mentioned.

8.      As per Section 24A of the Act, the limitation to file complaint is two years. There is no explanation on behalf of the respondent not to file complaint within the prescribed period of two years. The complainant/respondent even did not file any application for condonation of delay in filing of the complaint not even that no oral request was made. Thus, the complaint was barred by limitation.

9.      Coming now to the next limb of argument that the respondent was never treated by the appellant. Except the legal notice dated 24.12.2010 (Exhibit R-1), no evidence has been led by the respondent to prove that he was ever treated by the appellant. The above said notice was got issued by the respondent through Shri Kamlesh Panchal, Advocate. The appellant got the notice replied on 03.01.2011 (Exhibit R-2) through Shri Rajesh Kumar, Advocate while denying any treatment to the respondent by the appellant. Another notice dated 03.04.2014 (Exhibit C-22) was got issued by the respondent to the appellant through Shri Tarun Kaushik, Advocate, without giving reference to the earlier notice and the reply thereto. The opposite party/appellant specifically denying having ever treated complainant, yet the respondent has not placed on the file any document of appellant having ever treated him (respondent) for any disease. Onus was upon the respondent to prove that he received treatment from the appellant and that the appellant was negligent in giving treatment to him. The appellant having specifically denied, no presumption can be raised that the appellant ever treated the respondent and that in which manner the appellant was negligent and gave treatment to the respondent.

10.    In view of the above, it cannot be said that the respondent is entitled for any compensation from the appellant. the District Forum fell in error in allowing the complaint and as such the impugned order is not sustainable.

11.    Hence, the appeal is allowed, the impugned order is set aside and the complaint is dismissed.

12.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 05.05.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL