APPLICATION UNDER SECTION 72 OF THE CONSUMER PROTECTION ACT, 2019 SEEKING INITIATION OF PENAL ACTION FOR WILLFUL NON-COMPLIANCE OF FINAL ORDER

 

District : South Kolkata

Before the Hon’ble District Consumer Disputes Redressal Commission, Kolkata Unit-III
Tramline Building (First Floor)
18, Judges’ Court Road, Alipore, Kolkata – 700027

 

Execution Case No. 06 of 2021
(Arising out of CC/396/2018)

 

 

IN THE MATTER OF ;

 

Sri Bhaskar Biswas, Son of Sri Nilratan Biswas, Residing at 87F, Kailash Ghosh Road, P.S.– Haridevpur, Kolkata–700008, District: South 24 Parganas.

… Decree Holder / Applicant

 

-Versus-

 

Sri Soumen Chakraborty, Son of Sri Ashok Chakraborty, Proprietor, M/s A.G. Construction, Office at 4/4B, Motilal Gupta Road, P.S.–Haridevpur, Kolkata–700008,
District: South 24 Parganas.

 

… Judgment Debtor / Opposite Party

 

APPLICATION UNDER SECTION 72 OF THE CONSUMER PROTECTION ACT, 2019 SEEKING INITIATION OF PENAL ACTION FOR WILLFUL NON-COMPLIANCE OF FINAL ORDER DATED 09.10.2020

 

Most respectfully the Applicant states as follows;

 

1. That the Hon’ble Commission was pleased to pass a Judgment and Final Order dated 09.10.2020 in Consumer Complaint No. CC/396/2018 directing the Judgment Debtor to pay;

 

(i)   ₹13,00,000/- (Rupees Thirteen Lakhs) along with interest @9% p.a. from 11.04.2017 till realization; and

 

(ii)  ₹10,000/- (Rupees Ten Thousand) towards litigation cost within two months.

 

2. That the said Final Order has attained finality in terms of Section 68 of the Consumer Protection Act, 2019 as no appeal has been preferred, nor has the Decree Holder received any notice of appeal.

 

3.   That during the pendency of the present execution proceedings, the Judgment Debtor voluntarily appeared before this Hon’ble Commission through filing of Vakalatnama, and further submitted an application praying for time to comply with the Final Order, thereby unequivocally acknowledging the binding nature of the decree.

 

4.   That after seeking time, the Judgment Debtor abruptly stopped appearing in the proceedings and has been deliberately avoiding the implementation of the Order and evading the authority of this Hon’ble Commission.

 

5.   That to secure his presence, this Hon’ble Commission issued Bailable Warrant, which, despite being forwarded to the jurisdictional Haridevpur Police Station, was not executed on various unjustified and misleading pretexts.

 

6.   That thereafter, this Hon’ble Commission, in exercise of its statutory coercive jurisdiction, issued a Non-Bailable Warrant (NBW), however, the same too remains unexecuted with the police reporting that the Judgment Debtor could not be found, despite the record and the Applicant’s knowledge clearly indicating that he continues to ordinarily reside and operate within the jurisdiction of Haridevpur Police Station.

 

7.   That the records of this Hon’ble Commission speak for themselves and demonstrate that due to purposeful laxity and indulgence on the part of the Judgment Debtor, coupled with failure of police machinery in executing the warrants, his appearance could not be compelled despite repeated attempts.

 

8.   That from the conduct of the Judgment Debtor, it stands conclusively established that he is intentionally, consciously and willfully refusing to comply with the Final Order dated 09.10.2020, thereby falling within the ambit of punishment under Section 72(1) of the Consumer Protection Act, 2019.

 

9. That despite having full knowledge of the binding order of this Hon’ble Commission, the Judgment Debtor has deliberately, intentionally and willfully failed to comply with the directions made therein.

 

10. That the willful disobedience of the said order amounts to gross contempt and violation of Section 72(1) of the Consumer Protection Act, 2019, which provides for penal consequences including imprisonment, fine or both for non-compliance of an order of the Consumer Commission.

 

11. That the continued non-compliance without any reasonable cause clearly demonstrates the Judgment Debtor’s deliberate attempt to frustrate the execution proceedings and deny justice to the Decree Holder.

 

12. That this Hon’ble Commission has adequate power and jurisdiction to initiate penal action against the Judgment Debtor for such non–compliance, including imprisonment for a term extending to three years or fine, or both, as contemplated under Section 72 of the Act.

 

13. That unless this Hon’ble Commission initiates proceedings under Section 72, the Judgment Debtor will continue to flout the binding orders with impunity, causing irreparable loss and harassment to the Decree Holder.

 

14. That this application is made bonafide and in the interest of justice.

 

In view of the aforesaid submissions, it is therefore prayed that this Hon’ble Commission may kindly be pleased to;

 

a) Initiate penal proceedings against the Judgment Debtor under Section 72(1) of the Consumer Protection Act, 2019 for willful non-compliance of the final order dated 09.10.2020;

 

b) Issue appropriate warrant, summon or notice to show cause as to why action under Section 72 should not be taken;

 

c) Impose appropriate punishment, including imprisonment and/or fine, as contemplated under Section 72 of the Consumer Protection Act, 2019;

 

d) And/or pass such further or other orders as this Hon’ble Commission may deem fit and proper in the interest of justice.

 

AND FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL EVER PRAY.

 

 

AFFIDAVIT

 

I, Sri Bhaskar Biswas, Son of Sri Nilratan Biswas, aged about ___ years, by faith Hindu, by occupation Service, residing at premises being No. 87F, Kailash Ghosh Road, Police Station – Haridevpur, Kolkata – 700008, District – South 24 Parganas, do hereby solemnly affirm and state as follows;

 

1. That I am the Decree Holder in the above-named execution proceeding and the applicant in the accompanying Application under Section 72 of the Consumer Protection Act, 2019, and as such fully conversant with the facts and circumstances of this case.

 

2. That the Hon’ble Commission was pleased to pass a Judgment and Final Order dated 09.10.2020 in CC/396/2018 directing the Judgment Debtor to pay ₹13,00,000/- along with interest @ 9% and ₹10,000/- towards litigation expenses within a period of two months.

 

3. That despite having full knowledge of the said order, the Judgment Debtor has willfully failed, refused, and neglected to comply with the same, causing prejudice, harassment and financial loss to me.

 

4. That no stay order, modification order, or any order of suspension of the said Judgment dated 09.10.2020 has ever been communicated to me or placed before this Hon’ble Commission.

 

5. That the accompanying application invoking Section 72 of the Consumer Protection Act, 2019 is being filed for initiation of penal action against the Judgment Debtor for deliberate and willful non-compliance of the binding order of this Hon’ble Commission.
6. That the statements made in paragraphs 1 to 5 above are true to my knowledge and belief.

 

 

 

DEPONENT

Identified by me,

 

Advocate

Drafted & Prepared in my Chamber;

 

 

Advocate

Date : _________________2025

Place : Alipore Judges’ Court                                              N O T A R Y

List of Dates in a medical negligence case in Consumer Commission

 

List of Dates

Sl. No.	Date	Particulars’
1	19/04/2009	The petitioner with his minor child JoydiptoChakraborty, visited the Institute of Child Health Trust, at about 11 am, since the petitioner’s child suffering from cold, cough and fever. The child suffering was not to take food (light or heavy) and after having little water also, vomiting tendency raised. Earlier, in the month of December’ 2008, petitioner visited with his child for different sufferings of toilet problems and that time the child was admitted for three days, and cured. Such being cause of good belief tends the petitioner to visit on the occasion……………
2	20/04/2009	Saline and Oxygen continued. At about 11 am to 12 am, Dr. Joydeep Roy, and ManjuriMitra, attending the child but did not say anything. At about 12:30 pm Dr. A.K. Basu, attended the child, and suggested to move the child to ventilation, as the child was suffering from respiratory problems. Dr. A.K. Basu also suggested that the Child was suffering from hernia problems and required permanent solutions through operation. Prescribed so many medicine and suggested for X-Ray. After visiting hours in evening, the child has been shifted to the HDU-2 Bed at 1st floor from the Bed no. S-97 at 1st floor, where saline continued but oxygen opened up. The child was then suffering from high fever and the whole part of his body became very hot, the attending nurses said that nothing to worried as the same is a cause of reaction of medicine administered to the child………………
	21/04/2009	the saline continued and oxygen again started. At about 12 pm Dr. M. Mitra and Dr. J. Roy attended the child on their visit and suggested for Harnia Operation. The petitioner asked them about the necessity of such operation, but they did not say anything. They prescribed medicine. The petitioner meet with Dr. ApurbaGhosh, Director of the said Institution, who said there is no Harnia case, the operation is not required. The child case is of a medicine case and only medicine can cure…………..
	22/04/2009	early in the morning one Junior Dr. SarsangPradip attended the child and give medicine. The child fever was 102’ degree, the whole body was very hot. The nurses were coming and going and attending little bit to the child. The care by the staff nurses were not good. The petitioner’s wife PriyankaChakraborty, was much worried about the child only due to conduct of the staff nurses and the Doctors at the said Institute……………..
	23/04/2009	Early in the morning at about 5:30 am, it has been reported by the staff nurses that the ventilation was not working. One technical person asked by them, who reached at 7 am. The child conditions deteriorated and temperature of body did not low by means used by the doctors and staff nurses…………
	24/04/2009	At about 12 pm Dr. Basu attended the child and thereafter at about 1 pm some junior Doctors attended the child and done some nosal therapy on child and asked for X-ray of the child.   At about 10:30 pm (night) Dr. A.K. Basu, attended the child and asked the petitioner for the arrangement of Rs. 4,00,000/- ( Four Lakhs) only, which the petitioner arranged. Dr. Basu informed that the child conditions was very serious need to transfer to CMRI as soon as possible as the same is equipped for better treatment of the child. Thereafter at about 11:15 pm (night), the child was arranged to shift to CMRI……………………
	25/04/2009	The child condition has not been informed nor any information given about his treatment.
	26/04/2009	At visiting hour, Dr. SaugataAcharya, informed the Petitioner, that the child conditions was not good, and the same as it was.
	27/04/2009	In morning Dr. SaugataAcharya attended the child and asked for Brain MRI. At about 2 pm in afternoon the petitioner asked for the permission of hair cutting of the child, without saying that why the hair cutting was required. However, the petitioner given consent for hair cutting of the child………………
	28/04/2009	Dr. SaugataAcharya, was not available. The staff burses did not say about any development in the condition of the child……………
	29/04/2009	At about 12:30 pm very dramatically, DR. A.K. Basu and Dr. SaugataAcharya, asked the petitioner to meet with them at conference room of the CMRI. While the Petitioner meet with them, DR. A.K. Basu shows one X-ray and informed the petitioner that the Operation of the Child was successful. Thereafter Dr. SaugataAcharya, shows the MRI report about Blood Clotting at the back side of the child , and said that the Brain Death has been occurred to the Child and for that both of them sugested for neuro treatment and referred to one Dr. AvijitChattopadhyay, who done EEG of brain and informed that there was no hope………………..
	30/04/2009	There was no report or information.
	01/05/2009	“bedshole” problems has been reported by the staff nurses, and no Doctor attended the child…………
	02/05/2009	There was no report or information.
	03/05/2009	There was no report or information.
	04/05/2009	At about 9 am declared expired by CMRI and no Doctor came forward to said that how the death occurred……………….
	05/05/2009	The Post Mortem of the Child’s body, assailed.

And other dates in initiation of criminal proceeding and others.

 

Synopsis in Medical Negligence Case

 

Synopsis

Judicial References ;

1.   Bolam Versus Frien Hospital Management Committee, (1957) 2 All ER 118;

2.   Indian Medical Association Versus V.P. Shanta and Ors. III (1995) CPJ 1 (SC);

3.   Dr. LaxmanBalkrishnan Joshi Versus Dr. TrimbarkBabuGodbole and another, AIR 1969 SC 128;

4.   A.S. Mittal Versus State of U.P., A.I.R. 1989 SC 1570;

5.   Prashanth S. Dhakanka Versus Nizaminstitute of Medical Science and Others (1999) CPJ 43 (NC);

6.   Jacob Mathew Versus State of Punjab, 2005 AIR SC 3180;

7.   Samir Kohli Versus Dr. PrabhaManchanda, 2008 AIR SC 1385;

8.   State of Haryana and Others Versus Smt. Santra, I (2000) CPJ 53 (SC);

 

References from the consumer complaint;

1-   Post-Mortem Report – Page no. 333 & 334;

2-   Cough & Respiratory disorder – Page number 74;

3-   Disposal Order –corpses sent for cremation  - Page no. 158;

4-   Medical Certificate of cause of death – Page number 157;

5-   Statement of post-mortem doctor – Page no. 295, 296;

6-   Expert opinion – Page no. 297, 298;