condonation of delay in consumer case

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION

WEST BENGAL

11A, Mirza Ghalib Street, Kolkata - 700087

 

Complaint Case No. CC/5/2023 ( Date of Filing : 11 Jan 2023 )

1. PUNAM DIWAN NBCC VIBGYOR TOWERS, G10.7, NEW TOWN ACTION AREA 1, KOLKATA 700156. KOLKATA WEST BENGAL 2. KUNAL DIWAN NBCC VIBGYOR TOWERS, G10.7, NEW TOWN ACTION AREA 1, KOLKATA 700156 KOLKATA WEST BENGAL 3. ASHWANI DIWAN NBCC VIBGYOR TOWERS, G10.7, NEW TOWN ACTION AREA 1, KOLKATA 700156 KOLKATA WEST BENGAL ...........Complainant(s) Versus 1. APOLLO MULTISPECIALITY HOSPITALS FORMERLY KNOWN AS APOLLO GLENEAGLES HOSPITAL LIMITED, 58, CANAL CIRCULAR ROAD, KOLKATA 700054. KOLKATA WEST BENGAL 2. DR. SRABANI GHOSH ZOHA SUMANGALAM, BF - 302, SALT LAKE SECTOR 1, KOLKATA 700064. KOLKATA WEST BENGAL 3. DR. SURESH RAMASUBBAN XI-A, HAZEL, HILAND WOODS, NEW TOWN, KOLKATA 700157. KOLKATA WEST BENGAL 4. DR. S N SINGH 4RA-5/1, PURBACHAL, SALT LAKE, SECTOR 3, KOLKATA 700097. KOLKATA WEST BENGAL 5. DR. TANWEER SHAHID SUKH SADAN BUILDING, FLAT NO.-7D, 52B, SHAKESPEARE SARANI, KOLKATA 700017. KOLKATA WEST BENGAL 6. DR. SUBHASHISH GHOSH 119, SOUTHERN AVENUE, GREEN VIEW, 8TH FLOOR S/ W, KOLKATA 700029. KOLKATA WEST BENGAL ............Opp.Party(s)

 

BEFORE:
	HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT
	HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER
	HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER

 

PRESENT:	Dr.Kunal Saha (Authorized Representative), Advocate for the Complainant 1
	Dr.Kunal Saha (Authorized Representative), Advocate for the Complainant 2
	Dr.Kunal Saha (Authorized Representative), Advocate for the Complainant 3
	None Appears ......for the Opp. Party

Dated : 27 Feb 2023

Final Order / Judgement

HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT The present consumer complaint has been filed by the complainants under section 34 read with sections 35 & 69 of the Consumer Protection Act, 2019 against the opposite parties seeking  the following reliefs :- “i) Declare the Respondents, individually and jointly, guilty for medical negligence and ethical violation in the treatment of the patient, since deceased. ii) Declare the Respondents, individually and jointly, liable to the Complainant / Victim and direct to pay Damages / Compensation in the amount of Rs.5,11,22,000/- (Rupees Five crores eleven lakhs and twenty two thousand only) to the Complainants plus applicable interests. iii) Pass such other / or further orders as may be fit and proper in the facts and circumstances of the case.” Along with this complaint case no application for condonation of delay was filed. Subsequently, an application for condonation of delay was filed wherein it was prayed as under :- i) To condone the unintentional delay about 30 days in filing the instant application ii) To pass any further order /direction that this Hon’ble Commission may deem fit and proper under the facts and circumstances of the case.” The condonation of delay was sought on the ground that due to Covid 19 pandemic, the Hon’ble Apex Court has been pleased to pass order to the effect that time period between 15th March, 2020 and 28th February, 2022 shall stand excluded for the purpose of limitation.  The respondent hospital took few months’ time to provide medical records, thus there was also some delay in communication with People for Better Treatment (PBT) for preparation of the instant complaint by the petitioners / complainants. By computing the limitation period for filing the instant complaint case, there has been a delay of only 20 days in filing the instant case. To explain the delay, the authorized representative of the petitioners / complainants has submitted that due to pandemic situation of Covid 19 the movement of the citizens in India became restricted and Hon’ble Apex Court has waived the period of limitation. The Hon’ble Apex Court has been pleased to pass an order that time period between 15th March, 2020 and 28th February, 2022 shall stand excluded for the purpose of limitation.  He further submitted that in this regard the Hon’ble National Commission has also issued an office order dated 14th January, 2022 that the limitation period for filing of complaint under Consumer Protection Act, 2019 in all cases must be adjusted accordingly. He further submitted that there has been a delay of only 21 days in filing the instant case. So, the application for condonation of delay should be allowed and the complaint case should be admitted. In support of his application, the authorized representative of the petitioners / complainants has referred the decisions reported in 2002 SCC (3) 195 and copy of office order dated 14.01.2022 passed by the Hon’ble National Commission. Upon hearing the authorized representative of the petitioners / complainants and on perusal of the record it appears to us that the petitioners / complainants have stated in their application for condonation of delay that for the deliberate delay in providing the medical documents and the records by the opposite parties hospitals and as the respondent hospital took several months’ time to provide medical records, there was delay in filing the instant complaint case before this Commission. On careful perusal of the said application for condonation of delay it appears to us that there is no whisper in the application for condonation of delay as to on which date the petitioners / complainants submitted the application before the opposite party hospital for supplying copy to them and on which date they received the said documents / medical papers from the opposite parties. So, the case of the complainant that the opposite party hospitals took few months’ time to provide medical records cannot be accepted at all.  Now, we shall have to see as to whether the complaint was filed within the requisite time period i.e. within two years from the accrual of the cause of action and whether the petitioners / complainants have explained properly the cause of delay in filing the instant complaint case. To adjudicate this issue we deem it appropriate to refer section 69 of the Consumer Protection Act, 1986 which is as follows :- “Limitation period.- (1) The District Commission, 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 complainant satisfied the District Commission, 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 District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.” From the aforesaid provision it follows that the provision is peremptory in nature, requiring the Consumer Forum to examine before it admits the complaint that whether it has been filed within two years from the date of accrual of the cause of action. The Consumer Forum, however, for reasons to be recorded in writing may condone the delay in filing the complaint, if, sufficient cause is shown. According to the complaint filed by the complainant, the cause of action arose due to the death of the husband / father of the petitioners / complainants on 26th December, 2018. The Hon’ble Apex Court in State of Tripura and others Vs. Arabinda Chakraborty and Ors. reported in (2014) 6 SCC 460 has held the following :- “10. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making report, that there is any statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. The person may go on making representations for years and in such an event, the period of limitation would not commence from the date on which the last representation is decided.........” In the present case, the petitioners / complainants have filed the complaint after almost two years from the date of the cause of action arose. In order to condone the delay the petitioners / complainants have to satisfy this Commission that there was sufficient cause for preferring the appeal after the statutory period.  The term “sufficient cause” has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under :- “9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, “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”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any ”sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose”.  We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. reported in IV (2015) CPJ 453 (NC), wherein the Hon’ble NCDRC held as under :- “12. ………….. we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon’ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 appeals and revisions, which are highly belated are entertained.” From the aforesaid dicta of the Hon’ble Apex Court and the Hon’ble National Commission, it is clear 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 and applicant must satisfy the Court that he was prevented by any ‘sufficient cause’ from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Hon’ble Apex Court in a case reported in 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”. 10.  Reverting to the material available before us para no. 3 to 6 of the application for condonation of delay is the explanation given by the petitioners / complainants for the delay caused in filing this complaint.  It is clear that the cause of action of this case arose on 16.12.2018 and the complaint was supposed to be filed by 15.12.2020 i.e. within two years from the date of cause of action. The petitioners / complainants filed the present complaint on 11.01.2023 which is after a delay of more than two years. The period being sought to condone can be divided into two parts : i) From 25.12.2020 to 29.05.2022 ii) From 30.05.2022 till 11.01.2023. 11. The Hon’ble Apex Court vide order dated 10th January, 2022 passed in M.A. No. 21/2002, in M.A. No. 665/2021 in suo motu writ petition (Civil) No. 3 of 2020 has waived the period of limitation from 15.03.2020 till 28.02.2022. Limitation period was further extended by 90 days i.e. from 01.03.2022 till 29.05.2022. Hence, the period from 15.03.2020 till 29.05.2022 inevitably stands condoned. However, the petitioners / complainants will still have to explain the delay for the period beginning from 30.05.2022 till the date of filing i.e. on 11.01.2023 which is basically after Covid period. After excluding the period as discussed above there is a delay of 225 days which is unexplained. 12. Had the petitioners / complainants been able to explain the delay from 30.05.2022 to 11.01.2023 they could have the benefit of period of limitation. In the foregoing paras we have already decided that the petitioners / complainants have failed to prove that while they prayed for supplying the medical documents and records to the opposite party hospital and on while they supplied the medical documents to the petitioners / complainants we are of the view that the petitioners / complainants have failed to explain the sufficient cause in filing the instant complaint case in time. 13. Under these facts and circumstances and on consideration of the materials available on record we find that the complainants have taken no legal action since 02.06.2022 till the date of filing the present complaint. Even, in their application for condonation of delay, the complainants apart from stating that they have tried to get the documents and records from the hospital authorities and the hospital authorities supplied the documents after few months, failed to give any cause which would explain the inordinate delay of almost two years in filing of the complaint. 14. Thus, we are of the considered view that the complainants have not acted with reasonable diligence in filing this case which has resulted in filing the complaint beyond the period of two years as prescribed in the Consumer Protection Act, 2019.  It is clear that the negligence, deliberate inaction and lack of bona fide are imputable to the complainants, therefore, the complainants are not entitled for any condonation of delay. 15. Learned authorized Representative for the complainants in support of his arguments has relied on the ruling reported in i) 2002 SCC (3) 195.  However, reliance on this judgment in the adjudication of this complaint, facts being at variance, would be misplaced. 16. Accordingly, the application for condonation of delay is dismissed. Consequently, the complaint shall also stand dismissed. 17. A copy of this judgment be provided to all the parties free of cost. 18. The judgment be uploaded forthwith on the website of this Commission for the perusal of the parties. 19. The complaint case is, thus, disposed of accordingly.

 

[HON'BLE MR. JUSTICE MANOJIT MANDAL]

PRESIDENT

[HON'BLE MRS. SAMIKSHA BHATTACHARYA]

MEMBER

[HON'BLE MR. SHYAMAL KUMAR GHOSH]

MEMBER