Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza Ghalib Street,
Kolkata-700087.
Memo of Appeal no. ________of 2014.
In the matter of :-
An application under Section 15 of the Consumer Protection Act, 1986, for Conodonation of delay in filing the above appeal;
A N D
In the matter of :-
Smt. Rama Dhar, Wife of Shri Ranjit Dhar, residing at premises no. 3/2/1F, Chanditala Road, Police Station – Behala, Kolkata – 700 053, District – South 24 Parganas.
________Appellant / Petitioner.
- Versus –
1. Swadesh Basu Hospital, having address at premises being no. 204-A, D.H. Road, Thakurpukur, Kolkata – 700 063, District – South 24 Parganas.
2. Dr. Debasish Roy, of Swadesh Basu Hospital, having address at premises being no. 204-A, D.H. Road, Thakurpukur, Kolkata – 700 063, District – South 24 Parganas.
3. Dr. S. Gulati, of Swadesh Basu Hospital, having address at premises being no. 204-A, D.H. Road, Thakurpukur, Kolkata – 700 063, District – South 24 Parganas.
4. Dr. Kallol Banerjee, of Swadesh Basu Hospital, having address at premises being no. 204-A, D.H. Road, Thakurpukur, Kolkata – 700 063, District – South 24 Parganas.
__________Opposite Parties / Respondents.
5. The Calcutta Medical Research Institute, having address at premises being no. 7/2, Diamond Harbour Road, Kolkata – 700 027.
6. Dr. Ajay Mandal, of The Calcutta Medical Research Institute, at premises being no. 7/2, Diamond Harbour Road, Kolkata – 700 027.
________Proforma Opposite Parties / Respondents.
To,
The Hon’ble President and his companion Members of the State Commission.
The condonation of delay in filling of Appeal of the appellants above named most respectfully Sheweth as under :
1. That an appeal under Section 15 of the Consumer Protection Act’ 1986, against the order being dated 31-01-2014, passed by the Learned District Consumer Disputes Redressal Forum at Alipore, District – South 24-Parganas, in Case number C.C. no. 384 of 2012, filed before the Hon’ble Commission on 4th day of March’ 2014.
2. That the Appellant filed one Complaint case under Section 12 of the Consumer Protection Act’ 1986, before the Learned District Consumer Disputes Redressal Forum, at Alipore, South 24 Parganas, vide C.C. no. 384 of 2012, which has been subsequently admitted by the Learned Forum, and issue directions for notices upon the respondents / opposite parties, and thereafter the respondents / opposite parties on receipts of the notice of the Learned Forum, appeared in the said complaint case matter before the Learned Forum. though the Opposite Party no.1, Swadesh Basu Hospital did not submit it’s Written Version, before the Learned Forum, the Proforma Opposite Parties / Respondent nos. 5, and 6, also did not submit any Written Version, in the proceedings before the Learned Forum.
3. That the Opposite Parties / Respondents nos. 2, 3, and 4, commonly contended as the Supreme Court judgment reported in 2009 (I) CPJ 32 (SC), has not been followed by this Hon’ble Forum, and thus the present complaint is not maintainable in the eye of law. And the facts of the complainant has been admitted though retracted such facts on plea as before cutting & removing the gall bladder, clippings are done in the cystic duct, through which the gall bladder is connected to the common bile duct, these clips are left inside the abdomen to secure the cut end and prevent any bile leaking into the abdominal cavity. However failed to say anything about such clips, are necessary to be present in human body after completion of such surgery or operation.
4. That the Appellant furnished herein the extract of the Order dated 31st day of January’ 2014, passed by the Learned District Consumer Disputes Redressal Forum, at Alipore, South 24 Parganas in C.C. no. 384 of 2012, is as follows “ We have carefully gone through the records and documents of both the parties and also consulted medical books and journals. We have also gone through the reports of two Expert doctors. When second time patient visited the hospital with a complaint of pain in the abdomen O.P.-4 advised the patient to go for MRCP test which can rule out the possibility of any sludge / small stone in the CBD that might have been missed in the post operative USG study. In MRCP report no CBD sludge / stone was found. Based on this report she was advised CT Scan of the whole abdomen and ERCP. The patient party took the patient to another Proforma O.P. CT Scan report as has been mentioned in the discharge summary said “ In view of history of recent Cholecystectomy, features are suggestive billiary leak” once Gallbladder is removed there is no chance of stone in gallbladder at all. During operation to remove the stone in gallbladder they remove of whole gallbladder as per the standard practice. After lap cholecystectomy clips are always to be found inside the abdomen and this is accepted and performed worldwide and clinically harmless to the patient. It is very common in medical science that sludge or stone in the bile duct may remain undetected even after doing all appropriate tests like USG, MRCP and causes further pain which may have to be removed subsequently by endoscopic route ( ERCP ). This stone or sludge in common bile duct may some times cause dislodgement of cystic duct clip and bile leakage which may require intervention like percutaneous drainage of the bile collection or rarely another surgery to remove the bile collection. It is to be proved that the O.P. doctors did not do the things which was to be done or did something which was not to be done. Both the expert doctors and medical journal bear the same opinion. So it proves there was no medical negligence on the part of O.Ps. as a result the case fails”.
5. That the Appellant states and submits that the Learned Forum, failed to ascertain that the second time while X-ray report clearly shows about the Clips, the opposite parties did not cause any endavour to operate, rather several tests has been prescribed day by day, and therefore your appellant / petitioner was compelled by their circumstances to admit with the proforma opposite parties, who causes necessary operation and thus the patient became cure.
6. That the Appellant states and submits that the Learned Advocate applied for certified copy of the said purported order dated 31st day of January’ 2014, on 12-02-2014, and obtained on 14-02-2014, from the concerned department of the Learned lower forum.
7. That the Appellant states and submits that as per provisions of Section 15 of the Consumer Protection Act’ 1986, the appeal should be filed within a period of thirty days from the date of order under challenge, and thus in view of such legal proposition as the order was passed by the Learned Lower Forum on 21st day of January’ 2014, the thirty days came on 2nd day of March’ 2014, as the month of February this year having only 28 days. The 2nd March’ 2014, was Sunday and holiday, as the Hon’ble Commission does not seat on Sunday, the appellant should file his case on Monday i.e. 3rd day of March’ 2014, but due illness sufferings all of sudden to the appellant, the appellant could not arrange herself to visit her Learned Advocate at Court premises for putting her necessary signature and swearing her affidavit before the Learned Notary Public and for such reasons alone she was not able to file her appeal on last day of limitation as directed under Section 15 of the Consumer Protection Act’ 1986.
8. That the Appellant states and submits that one day delay has been occurred in filing of her present appeal before the Hon’ble Commission.
9. That the Appellant states and submits that such an one day delay was occurred not due to any latches and or intention and or motivation of any manner, rather such delay occurred only due to suffering from illness and under compelling circumstances, beyond her control.
10. That the appellant states and submits that the appellant seeks condonation of one day delay in filling the present appeal, and placing her unconditional apology before the Hon’ble Commission for such acts and omission.
11. That the appellant states and submits that unless the Hon’ble Commission, condone such one day delay in filling the present appeal, the appellant prevent to get substantial justice and equality before the Law as enumerated under Article 14 of the Constitution of India, and will be highly prejudice and suffer with irreparable loss and injury.
12. That balance of convenience is wholly in favour of order being made as prayed for hereinabove.
13. That a copy of the impugned order dated 21st day of January’ 2014, is annexed herewith this petition, marked as Annexure – “A”.
14. That this application of condonation of delay in filling of appeal / application / petition, is made bona-fide and for the interest of administration of justice.
Under the circumstances, the Petitioner, of this instant application / petition, prays before your Honours, would be graciously pleased to condone the delay of one day, caused in preferring the above appeal, and / or to pass such other necessary order or orders as your Honours may deem fit and proper for the end of justice.
And for this act of kindness, your Petitioner, as in duty bound shall ever pray.
Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza Ghalib Street,
Kolkata-700087.
Memo of Appeal no. _______of 2014.
In the matter of :
Smt. Rama Dhar,
_________Appellant / Complainant.
- Versus –
Swadesh Basu Hospital, and others._______ Respondents / Opposite Parties.
AFFIDAVIT
Affidavit of Smt. Rama Dhar, Wife of Shri Ranjit Dhar, aged about 33 years, by faith Hindu, by Occupation – House Wife, residing at premises being no. 3/2/1F, Chanditala Road, Police Station – Behala, Kolkata – 700 053, District – South 24 Parganas.
I, the above deponent do hereby solemnly affirm and declare as under :
1. That I am the Appellant / Complainant Petitioner in the above appeal case, thoroughly conversant with the facts and circumstances of the present case and am competent to swear this affidavit.
2. That the facts contained in my memo of appeal, the contents of which have not been repeated herein for the sake of brevity may be read as an integral part of this affidavit and are true and correct to my knowledge.
3. That the above statements of my declarations are true to my knowledge and belief.
DEPONENT
Verification
I, the above named deponent do hereby solemnly verify that the contents of my above affidavit are true and correct to my knowledge, and no part of it is false and nothing material has been concealed therein.
Verified this ………….the day of …………….2014, at the Alipore, Kolkata.
DEPONENT
Identified by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : __________________ 2014.
Place : Alipore Judges Court, Kolkata.
N O T A R Y
