Tripura

StateCommission

A/11/2019

Smt. Supriya Malakar alias Supriya Das - Complainant(s)

Versus

Sri Santosh Saha - Opp.Party(s)

Mr. Kaushik Nath, Miss. Aradhita Debbarma, Mr. Purashuttam Roy Barma, Mr. Samarjit Bhattacharjee

08 Jul 2019

ORDER

 

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.11.2019

 

1. Smt. Supriya Malakar alias Supriya Das,

W/o Sri Biswajit Das, D/o Sri Narayan Ch. Malakar,

Resident of Milanchakra, Road No.2, Srinagar,

P.O. & P.S. A.D. Nagar, Agartala,

District - West Tripura.

         … … … … Appellant/Complainant.

 

​

1. Sri Santosh Saha,

Proprietor of Mediland Diagnostic Centre,

Old R.M.S. Chowmuhani, 

Agartala, West Tripura,

Pin: 799001.

 

2. Dr. S. Chakraborty,

Mediland Diagnostic Centre, 

Old R.M.S. Chowmuhani, 

Agartala, West Tripura.

… … … … … Respondent/Opposite Parties.

 

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

 

For the Appellant:                                         Mr. Kawsik Nath, Adv.

For the Respondents:                                    Mr. Sankar Bhattaharjee, Adv.

Date of Hearing:                                            20.06.2019.

Date of Delivery of Order:                           08.07.2019.

 

O R D E R

 

U.B. Saha,J,

The instant appeal is filed against the judgment dated 12.09.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.137 of 2017 along with an application for condoning the delay of 164 days in preferring the appeal.     

1. Today is fixed for order on condonation petition.
2. Heard Mr. Kawsik Nath, Ld. Counsel appearing for the appellant (hereinafter referred to as complainant) as well as Mr. Sankar Bhattaharjee, Ld. Counsel appearing on behalf of the respondent no.1 and 2 (hereinafter referred to as opposite parties).
3. Brief facts needed to be discussed are as follows:-

Complainant, Smt. Supriya Malakar alias Supriya Das was advised by Dr. Sapna Datta, MBBS for USG (Ultrasonography) of whole abdomen. Complainant went to the Mediland Diagnostic Centre owned by opposite party no.1, Santosh Saha for USG. She paid Rs.1,000/- as charge of USG and Ultra Sonography was done there over abdomen. In the report, the right ovary was shown enlarged with a thick-walled cyst, 34X31 mm approx. On the basis of the report, Dr. Sapna Datta advised for operation of right ovarian cyst. On 06.06.2017, she went to Apollo Hospital and USG was done there. In the USG report right ovary was not visualized. Left ovary was in enlarged condition. Apollo Hospital in the discharge certificate written that right ovary was absent. So, opposite parties had given wrong report as it contradicted with the report of Apollo Hospital. Complainant suffered a lot because of this wrong report. She prayed for compensation of Rs.2 lacs and costs of Rs.25,000/- and also for further an amount of Rs.1 lac for mental agony and harassment.

4. Opposite party no.1, Mediland Diagnostic Centre filed written statement denying the claim of the complainant. It is stated that opposite party is not aware about the USG done in the Apollo Hospital. Opposite parties did not give any defective report at all. Opposite party no.2 has sufficient experience for conducting the USG since long and he has also completed the competency for doing the test. There was no deficiency of service by opposite parties and thus the claim is liable to be dismissed.

 

5. On the basis of the contention raised by the parties, the learned District Forum framed the following points for deciding the case:

1. Whether the USG test done in the laboratory of O.P. was wrong and caused harassment of the petitioner?
2. Whether petitioner suffered and she is entitled to get compensation?

6. Complainant produced the photocopy of Legal Notice, photocopy of Division of Ultrasound, Ultrasound Report of whole Abdomen, photocopy of Discharge Certificate. Complainant also examined herself as a witness.
7. Opposite parties, on the other hand, produced the copy of Ultrasound Evaluation test certificate, copy of Membership Certificate Sonological Society of India, copy of deed of partnership. Opposite parties also produced statement on affidavit of one witness, namely, Dr. Sagnik Chakraborty.

2. After going through the evidence adduced by the parties, the learned District Forum dismissed the complaint petition.

8. Being aggrieved by the aforesaid judgment of the learned District Forum, the appellant-complainant preferred the instant appeal along with an application for condoning the delay of 164 days in preferring the appeal.
9. Reasons for causing delay in preferring the appeal as stated in the condonation petition are as follows:-

That though the judgment was delivered on 12.09.2018, but the copy of the judgment was not supplied to the elder brother of the appellant-complainant, namely, Litan Malakar on the ground that copy of the judgment could not be given to him and the same would be supplied only to the engaged lawyer who conducted the case before the learned District Forum. It is also stated that Puja vacation started from 13^th October, 2018 and continued up to 2^nd week of November, 2018. In the 3^rd week of November, 2018, the appellant-complainant contacted with Ld. Counsel, Miss Aradhita Debbarma for taking her advice as to what step could be taken following the dismissal of the complaint by the learned District Forum. Then the said Ld. Advocate asked the appellant-complainant to visit her again after about 15 days. In the first week of December, 2018 i.e. 03.12.2018, Litan Malakar, the elder brother of the appellant-complainant at 12.00 pm met with the Ld. Advocate in her chamber wherein held discussion about the case and after going through the judgment and file, the Ld. Advocate advised the elder brother of the appellant-complainant that the appeal could be preferred to the ‘learned District Forum’. Being so advised, the elder brother of the appellant-complainant told the Ld. Advocate that after consultation with the appellant-complainant he would inform her. Thereafter, the said Litan Malakar consulted with the appellant and the appellant requested Litan Malakar to instruct the Ld. Counsel, Miss Aradhita Debbarma to prefer memo of appeal. Accordingly, on 9^th December, 2018, Litan Malakar, for and on behalf of the appellant-complainant informed the Ld. Counsel, Miss Aradhita Debbarma about the opinion of the appellant-complainant and conveyed to her consent given by the appellant-complainant for preferring the appeal. That being so instructed the Ld. Counsel, Miss Aradhita Debbarma asked Litan Malakar, the elder brother of the appellant-complainant to contact with her again after a week. Thereafter, the said Litan Malakar contacted with Miss Aradhita Debbarma on 16.12.2018 and on that day she told that memo of appeal had been prepared and it could be filed on the following day or day after tomorrow. As there was misconception that limitation period is 90 days for filing appeal before the State Commission and for this reason the appellant-complainant contacted with Ld. Counsel, Miss Aradhita Debbarma in the 1^st week of January, 2019 i.e. on 02.01.2019. On that day, the memo of appeal which was ready for filing and about to be printed out found to be missing from the computer. For this reason, the appeal could not be filed on that day. Thereafter, on 5^th of January, 2019 the appellant-complainant contacted with Ld. Counsel, Miss Aradhita Debbarma then she was told by her that computer has not yet been become operational and some more days will be required to make it operational. She was asked to contact again after 7-10 days and accordingly, in the 3^rd week of January, 2019, she contacted with Ld. Advocate and the Ld. Advocate was found to be occupied with her competitive examination and she was told by the Ld. Advocate that till March, 2019, she would not be free and the appellant may contact with another lawyer to file the appeal. In the 3^rd week of March, 2019 i.e. on 20.03.2019, after the return of Ld. Counsel, Miss Aradhita Debbarma, appellant-complainant contacted with her and accordingly the condonation petition was filed on 25.03.2019. In this way there has been delay of 164 days in preferring the appeal.

10. The opposite parties filed an objection to the prayer for condonation of delay. In Paragraph-5 of the objection, it is specifically stated that the alleged story of visiting the Office of the learned District Forum by the elder brother of the appellant-complainant is nothing but only to make out some days explanation blaming the office staff of the learned District Forum. It is further stated that it would be evident that from the copy of judgment that on 12.09.2018 itself the judgment was forwarded to the Ld. Counsel of the parties and the appellant counsel as it appears received the copy on 12.10.2018 thus the explanation in this para cannot be accepted and there is lapses on the part of the appellant. It is again stated that for preparation of memo of appeal or consulting Ld. Counsel during Puja vacation is not barred. The respondent-opposite party also denied the story of the appellant-complainant that the appellant contacted with Miss Aradhita Debbarma, Ld. Counsel in the 1^st week of January, 2019.
11. Mr. Nath, Ld. Counsel appearing for the appellant-complainant while urging for condoning the delay as sought for would contend that though the judgment was delivered on 12.09.2018, but the free copy of the judgment was not supplied to the elder brother of the appellant-complainant on the ground that the free copy can be supplied either to the complainant or to her engaged Counsel. He further submits that as Puja vacation started from 13^th October, 2018 and continued up to 2^nd week of November, 2018 and thereafter, in the 3^rd week of November, 2018, the appellant contacted with her Ld. Counsel for taking necessary steps, but the Ld. Counsel told her that she would inform her as to when the appeal has to be filed. More so, regarding the period of limitation, there was a misconception. Thus the delay of 164 days caused in preferring the appeal. He again submits that in the 3^rd week of January, 2019, the appellant-complainant contacted with her Ld. Advocate who was found to be occupied with her competitive examination and she was told by the Ld. Advocate that till March, 2019, she would not be free and the appellant may contact with another lawyer to file the appeal. Accordingly, she contacted with the another lawyer, Mr. Nath, Ld. Counsel in support of his contention has relied upon a judgment of the Hon’ble Apex Court in N. Balakrishnan Vs M. Krishnamurthy (1998) 7 SCC 123, particularly Para-11 of the judgment wherein the Hon’ble Apex Court noted, inter alia, that “Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy.” He has also relied upon the case of Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar Academy & Others, 2013 12 SCC 649, wherein the Hon’ble Apex Court culled out the principles regarding terms of ‘sufficient cause’ as well as substantial justice.
12. Per contra, Mr. Bhattaharjee, Ld. Counsel appearing for the opposite parties submits that Consumer Court is not like a Civil Court and particularly, Proviso to Section 15 of period of limitation specifically prescribes that 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 the Court is to entertain highly belated petitions. In support of his aforesaid contention he has relied upon a judgment of Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC). He has also relied upon the case of Basawaraj & Anr. Vs The Spl. Land Acquisition Officer (Civil Appeal No.6974 of 2013) wherein the Hon’ble Apex Court observed “It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. ‘A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim ‘dura lex sed lex’ which means ‘the law is hard but it is the law’, stands attracted in such a situation. It has consistently been held that, ‘inconvenience is not’ a decisive factor to be considered while interpreting a statute.” He has also relied upon a judgment of the Hon’ble National Consumer Disputes Redressal Commission in Royal Sundaram General Insurance Co. Ltd. Vs Imteyaz Alam wherein the Hon’ble National Commission discussed as to when the delay should be condoned and held that the delay in filing the appeal due to negligence of Counsel is not sufficient ground and in the instant case, the basic grounds for delay in filing the appeal is on the ground of lapses on the part of engaged Counsel of the appellant. Thus, it would not be proper to condone the delay.
13. We have gone through the condonation petition as well as the objection. Contention of the appellant that the delay caused due to preoccupation of her Ld. Counsel i.e. her competitive examination is not supported by any affidavit of the lawyer. More so, shifting the entire burden on the shoulders of the Ld. Counsel who was representing the appellant-complainant is not a sufficient ground for condoning the delay. The law requires that the parties itself should be vigilant about their own case. The judgments of the learned District Forum are uploaded on the websites and so it cannot be presumed that till the time the Ld. Advocate of the appellant-complainant informed her about the disposal of the case, she was unaware of the same and the story of her elder brother Litan Malakar went to the District Forum office for receiving the copy is not believable as the same is also not supported by any affidavit of said Litan Malakar.

We have also gone through the calendar for the year 2018 A.D. from which it appears that the Puja vacation was from 13^th to 24^th October, 2018 and during this period, 15^th October was also a working day, therefore, the story of Puja vacation from 13^th October, 2018 to 2^nd week of November, 2018 is not correct. The Puja holiday as stated by the appellant-complainant may be for other Civil Courts, but not for the Consumer Court like District Forum and State Commission. According to us, all these explanations are only to eye wash the mind of this Commission without any basis.

14. In Basawaraj & Anr. Vs The Spl. Land Acquisition Officer (Civil Appeal No.6974 of 2013), the Hon’ble Apex Court observed that “It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. ‘A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim ‘dura lex sed lex’ which means ‘the law is hard but it is the law’, stands attracted in such a situation. It has consistently been held that, ‘inconvenience is not’ a decisive factor to be considered while interpreting a statute.”
15. ‘Sufficient cause’ is the cause for which the opposite parties could not be blamed for their filing of appeal in time. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. In other way, it can be said that "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive".
16. As per settled law, culled out from various judicial decisions, the above expression, 'sufficient cause' though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellants of adjudication of their grievances on the merits of their appeal for causes beyond their reasonable control, which means the cause is bona fide and beyond the control of the appellants. There is no hard and fast rules, what should be the 'sufficient cause' in a given case.
17. In Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), the Hon’ble Apex Court while dealing with the issue pertaining to condonation of delay observed as follows:-

“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.”

Again in Cicily Kallarackal Vs Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein the Hon'ble Supreme Court observed:-

“4. 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).

5. 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.

6. 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”.

In the aforesaid judgment Hon’ble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.”

18. In the case of Royal Sundaram General Insurance Co. Ltd. Vs Imteyaz Alam, Revision Petition No.1737 of 2018, the Hon’ble National Commission discussed regarding the condonation of delay almost in a similar matter wherein the Insurance Company therein shifted the entire burden on the shoulder of the Ld. Counsel who was representing the petitioner-Insurance Company and held as follows:-

“6.       It is noteworthy that in the entire Application, the Petitioner had not disclosed the number of days by which the Appeal was delayed.  The grounds taken by the Petitioner in the Application seeking condonation of delay, which are also reproduced as above, do not give any convincing and sufficient explanation for the delay.  Shifting the entire burden on the shoulders of the learned Counsel who was representing the Petitioner is not sufficient ground.  The law requires that the parties itself should be vigilant about their case.   The State Commission has also observed certain facts as under:

"Lastly, if we are to trust the contention of the Appellant as gospel truth, then it would appear that a considerable time was wasted in moving the file from one office to another. There is no reason to believe that branch offices of the Appellant are not connected with their H.O. through computer network.  It is indeed surprising that despite finding that the statutory period of moving the Appeal got over long ago, they did not opt for sending the requisite documents through mail, thereby saving crucial time."

7.       These facts clearly show that the Petitioner had been acting in a very casual manner while dealing with such serious matters related to consumers.  There is no doubt that the law requires that while dealing with the matters related to condonation of delay in filing the Revision Petitions/Appeals, Courts have to act liberally but where the delay is unexplained and is not convincing and no sufficient cause is shown, the courts are also justified in rejecting the Revision Petitions/Appeals.  In "Ram Lal and Ors. vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361", the Hon'ble Supreme Court while dealing with the matter of condonation of delay has observed as under:

"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."

8. The Hon'ble Court in another case of "R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC),  has clearly laid down the guidelines and the basic test which the court has to apply while dealing with the matters related to condonation of delay, to judge whether the Petitioner had acted with reasonable diligence or not.  The Hon'ble court has held as under:

"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.”

19. The case laws referred by Mr. Nath, Ld. Counsel for the appellant-complainant is not related to a case of Consumer Protection Act, rather a case regarding Civil disputes and the facts of those cases are totally different, than the case in hand. Thus, we are unable to accept the contention of Mr. Nath.  

In view of the above, we are of the opinion that the delay in filing the instant appeal has not been properly explained and the same is also not reasonable and bona fide as required under law. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura