Delhi

StateCommission

CC/11/369

G.S SACHDEVA - Complainant(s)

Versus

SAROJ HOSPITAL & HEART INSTITUTE & ORS. - Opp.Party(s)

23 May 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

Date of Decision: 23.05.2018

Complaint No.-369/2011

 

(Order disposing application of complainant dated 16.04.2016)

 

In the matter of:

SH. G. S. SACHDEVA (COMPLAINANT)

VS.

SAROJ HOSPITAL AND OTHERS

CORAM

 

N P KAUSHIK

:

Member (Judicial)

 

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

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

 

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

 

JUDGEMENT

 

1. By way of this order I intend to set at rest the controversy whether the written versions filed by the OPs No. 1 to 5 in the present complaint are to be taken on record.  Going into the back ground of the matter, a complaint alleging medical negligence against OP1 Hospital and the treating doctors (OP3, OP4 & OP5) was filed on 17.11.2011.  At the time of filing of the complaint, complainant had sought condonation of delay in filing the complaint.  OPs had contested the said application.  Vide orders dated 21.02.2013, this Commission dismissed the application for condonation of delay.  Hon’ble National Commission vide orders dated 04.02.2015 restored the complaint to the board of this Commission.  Vide orders dated 10.03.2015, this Commission directed the OPs to file written version.  OPs kept on seeking adjournments for filing of written versions.  Vide orders dated 18.01.2016 this Commission again granted time to the OPs for filing of written version.  OP No. 1 & 2 filed written version on 04.03.2016 vide diary No. 1885 alongwith an application for condonation of delay in filing the same.  However, OP3 & 4 again sought time for filing written version.  OP No. 5 moved an application seeking his discharge.  Written version was filed by OP No. 5 on 04.02.2016 vide diary No. 1860.  OP No. 3 & 4 filed written version on 09.03.2016.  An application dated 16.04.2016  was filed by the complainant raising objection for taking on record the written versions filed by the OPs.  Vide orders dated 19.04.2017 Hon’ble National Commission directed this Commission to dispose of the objection raised by the complainant regarding taking on record the written versions before proceeding further in the complaint.  It was also directed that the State Commission shall keep in view the order of the Hon’ble Supreme Court dated 10.02.2017 passed in the case of M/s. Reliance General Insurance Co. Ltd. vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd. (D. No. 2365 of 2017).

 

2. A review petition filed against the orders dated 19.04.2017 was disposed of by the Hon’ble National Commission vide its orders dated 16.05.2017.  While dismissing the review petition, the Hon’ble National Commission observed as under:

4. “ It is plaint from a bare reading of the order, sought to be reviewed, that the impugned observation barely seeks to invite the attention of the State Commission to a recent order of the Supreme Court, which may otherwise be within its knowledge and nothing more.The apprehension of the Applicant that State Commission would feel bound by the decision in Reliance General Insurance Co. Ltd. (Supra) is unfounded and in fact tends to leave an impression that the Applicant is not interested in an effectual and expeditious decision in his complaint.The order does not suffer from any error on the face of the record warranting review as contemplated under Section 22(2)of the Act.The application is dismissed accordingly.”

3. I have heard at length the arguments addressed by the Counsel for the complainant Ms. Kittu Bajaj, Counsel for OP1 & OP2 Sh. N. S. Nangia, Counsel for OP 3 & 4 Sh. S. C. Rajpal, and Counsels for OP5 Sh. Onkar Prasad, Dr. M. C. Gupta and Sh. Robin Bansal.

 

4. Question of filing of written versions within a period of 30 days (extendable by another 15 days) is pending before the larger bench in the Hon’ble Supreme Court.  In the case of Reliance General Insurance Co. Ltd. (supra) while noticing the case  of Bhasin Infotech and Infrastructure Pvt. Ltd. vs. Grand Venezia Buyers Association (Civil Appeal 1083-1084 of 2016), the Hon’ble Supreme Court directed the Consumer Forums to accept the written statement filed beyond the stipulated time of 45 days in appropriate case on suitable terms including the payment of costs.  Coming to the case in hand, a considerable time was spent in contesting the application for condonation of delay in filing of the complaint.  The same as referred to above was finally disposed of on 04.02.2015.

 

5. Contention of the OPs is that they were directed to file written versions by this Commission vide orders dated 18.01.2016 and they filed their written versions on 04.03.2016/ 09.03.2016.  Ld. Counsels for OP No. 1, 2 & 5 submitted that calculated thus the written versions have been filed by them on 04.03.2016 and within the period permitted.  OP No.3 & 4 submitted that calculated by the aforesaid manner, their written versions are filed with a delay of only 4 days.

 

6. With the aforesaid background of facts and legal position, this Commission is confronted with the question whether the OPs can take shelter of this Commission’s orders directing them to file written versions within a particular period.  Before proceeding further, it may be mentioned here that the Hon’ble National Commission had vide orders dated 19.04.2017 directed this Commission to deal with the said objection.  Period of 30 days (extendable by another 15 days) is the period provided under Consumer Protection Act-1986 for filing of written version.  Without directions from the Consumer Forums, OPs are required to come up with written versions within the aforesaid period of 30 days from the date of service.  Clearly the OPs cannot be allowed to play with the period of limitation and keep on asking for time for filing of written versions frustrating the object of the statute.  Calculated thus in the present case there is a delay of about one year and one month in filing of written versions.  In the case of Bhasin Infotech and Infrastructure Pvt. Ltd. (supra), condonation of delay in filing of written versions even on payment of costs was subject to the condition that the complainant was ready and willing to accept the terms imposed by the Court.  In the case of Reliance General Insurance Company Ltd. and another (supra), there is no such requirement of seeking consent of the complainant.  I am conscious of the fact that this Commission has not clearly taken into account the period of about 4 years spent by the parties in contesting the issue of condonation of delay in filing the complaint.  In the facts and circumstances, I am of the considered opinion that costs of Rs.20,000/- to be paid by each of the OPs shall meet the ends of justice.  To make the things clear all the OPs shall pay a total costs of Rs.1 lakh to the complainant. 

 

7. In view of the findings above, the written versions filed by the OPs are taken on record.

 

8. At this stage advance copies of the rejoinder alongwith affidavit towards evidence supplied to the Counsels for the OPs present.  Affidavits towards evidence be filed by the complainant.  Ms. Kittu Bajaj, Advocate states that she shall file rejoinder alongwith affidavits towards evidence during the course of the day.  Let the affidavit towards evidence be filed by the OPs within a period of 4 weeks from today with an advance copy to the complainant.  Let written arguments be filed by the parties within a period of 4 weeks thereafter exchanging copies thereof. 

 

 

(N P KAUSHIK)

MEMBER (JUDICIAL)