State Consumer Disputes Redressal Commission
1. Light Bite Foods Pvt. Ltd vs Himmat Iqbal Singh Jakhar on 10 January, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 08 of 2014 Date of Institution : 03.01.2014 Date of Decision : 10/01/2014 1. Light Bite Foods Pvt. Ltd. 317, Udyog Vihar, Phase IV, Gurgaon-122016, through its Manager 2. Restaurant Punjab Grill Restaurant by Jiggs Kalra, SCO 120-122, Sector 17-C, Chandigarh, through its Manager. Appellants/Opposite Parties V e r s u s Himmat Iqbal Singh Jakhar s/o Late Shri Rakeshinder Singh Jakhar, resident of House No.293, Sector 10-A, Chandigarh. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Ms. Anamika Mehra, Advocate for the appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 14.10.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent), and directed the Opposite Parties (now appellants), as under:-
In view of the above discussion, we are of the opinion that the present complaint deserves to succeed and the same is accordingly allowed. The opposite parties are directed as under :-
i) to refund the amount of Rs.5,500/- to the complainant received against the bill amount of Rs.5,413/-;
ii) to pay Rs.77,040/- to the complainant being the amount spent by him for his hospitalization/treatment at the Fortis Hospital;
iii) to pay Rs.50,000/- as compensation for mental agony and trauma undergone by him after eating at their restaurant;
iv) to pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr. No.(i) to (iii) above shall carry interest @18% per annum from the date of filing of this complaint, till actual payment, besides payment of litigation costs.
2. The facts, in brief, are that, on 5.8.2012, at about 10:00 p.m., the complainant, his colleagues and friends, went for dinner, at the restaurant of the Opposite Parties. Among other things, they also ordered for a dish called RANN, comprising boneless pieces of mutton. However, immediately on consuming the said dish, the complainant felt excruciating pain, in his throat, and rushed to the washroom. He vomited twice there and the traces of blood were seen in the same. Upon this, the complainant and his friends started leaving for the Hospital, but they were allowed, after making payment of Rs.6,500/- i.e. the amount of bill. The complainant was immediately taken to the Fortis Multispecialty Hospital, Mohali, at about 11:30 p.m. on 05.08.2012. He was rushed to the emergency of the said Hospital. After conducting preliminary tests, the Doctors of the said Hospital, concluded that the complainant had consumed a fish bone, which had cut his food pipe, upto lower part of the throat, which needed immediate surgery. The surgery was carried out, at around 11:00 a.m., on 06.08.2012, and the fish bone was removed. It was stated that due to negligence, on the part of the Opposite Parties, the complainant, had not only incurred Rs.77,040/-, on his hospitalization, but also suffered tremendous mental agony and physical harassment. When the Opposite Parties were asked to pay compensation, to the complainant, they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming various reliefs.
3. The Opposite Parties, in their joint written version, stated that the complainant, his colleagues and friends, came to their restaurant, on 05.08.2012, at about 10:30 p.m, and asked for a table for five persons. It was also admitted that the complainant ordered for Dal Punjab Grill, RAAN, Khaam Khatai, Murg Tikka, Tandoori Parantha, Butter Naan. It was also admitted that a few minutes after serving the food/dishes, the complainant went to the washroom, and when he came back, all his guests, started leaving the restaurant, stating that the complainant was suddenly feeling unwell. It was further stated that against the bill of Rs.5,413/-, one of the ladies, amongst the guests paid a sum of Rs.5,500/-. It was denied that the complainant suddenly fell ill, after consuming RAAN. It was further stated that there was no possibility of any fish-bone, in any of the dishes, ordered by the complainant, because RANN was a boneless dish. It was further stated that the only fish-dish with bone served in the restaurant was Tandoori Pompret. The factum, with regard to admission of the complainant, in Fortis Hospital, was denied for want of knowledge. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7. We have heard the Counsel for the appellants, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellants/Opposite Parties, submitted that, no doubt, on 05.08.2012 at about 10:30 p.m., the complainant, his colleagues and friends, came to the restaurant, of the Opposite Parties, for dinner. She further submitted that the order for various dishes, referred to above, was given by the complainant. She further submitted that RANN one of the dishes, which was ordered by the complainant and supplied to him, and his guests, comprised boneless pieces of mutton. She further submitted that, even the Doctors of Fortis Hospital, who allegedly treated the complainant, in the discharge summary, did not arrive at any definite conclusion, that there was a fish bone, in Orophagus of the complainant. She further submitted that since no fish dish, with bone, was served to the complainant, the question of swallowing/taking the same, by him, did not at all arise. She further submitted that there was, thus, no negligence, on the part of the Opposite Parties, nor they were deficient, in rendering service, nor they indulged into unfair trade practice. She further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
9. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Admittedly, the complainant, his colleagues, and friends, went to the restaurant of the Opposite Parties, on 05.08.2012, at about 10.00/10.30 P.M. There is also, no dispute, about the factum, that the complainant, his colleagues and friends, ordered for the dishes Dal Punjab Grill, RAAN, Khaam Khatai, Murg Tikka, Tandoori Parantha, Butter Naan and the same were supplied to them. After taking RANN, one of the dishes, the complainant felt excruciating pain, in his throat, and, immediately, rushed to the washroom. The bill Annexure C-2 dated 05.08.2012, was generated at 11:04 p.m. The complainant was immediately rushed to the Fortis Hospital. It is evident from Annexure C-1 copy of the discharge summary of the Fortis Hospital, that the complainant was admitted on 05.08.2012 at 23:47 (11:47 p.m.), and was discharged on 08.08.2012. It means that, immediately, after taking one of the dishes RANN, the complainant felt severe pain, in his throat. Within a span of 43 minutes, the complainant was admitted in the Fortis Hospital. No doubt, RANN comprises boneless mutton pieces, yet, it was admitted by the Opposite Parties, that one of the dishes i.e. Tandoori Pompret, was being served in the restaurant, which is a fish dish, with bone. Thus, the possibility could not be ruled out that some piece of Tandoori Pompret, in the dish of RANN ordered by the complainant, his colleagues and friends, was mixed. Discharge Summary Report Annexure C-1, of Fortis Hospital, under the heading Diagnosis reads as under :-
Foreign Body Ingestion (Fish Bone in Orophagus)-removed under G/A in MSOT
10. Further, under the heading Course in the Hospital, of the said report, reads as under
:-
Patient admitted with?
foreign body impaction. X-Ray STM was normal. He was kept nill orally and started on Inj. Magnex, Inj. Parfalgan, IV fluids and other supportive treatment. Direct laryngoscopy done (by Dr. G.D. Rattan) followed by UGI endoscopy (by Dr. Arvind Sahni) done under G/A in OT on 6/8/12. Fish bone?? 1cm removed from vallicula. UGI endoscopy showed normal esophagus, normal stomach and normal till D2. There was no post-procedure complication. He was shifted to room and kept under observation. He is being discharged on request.
11. Perusal of the aforesaid report of the Hospital, clearly established that the complainant underwent laryngoscopy, followed by UGI endoscopy, under G/A, in OT, on 06.08.2012, and further that one centimeter fish bone was removed from the vallicula. From the averments, contained in the complaint, duly supported by the affidavit of the complainant, by way of evidence, and fortified by discharge summary, of the Fortis Hospital Annexure C-1, referred to above, the District Forum was right, in coming to the conclusion that, it was on account of negligence, on the part of the Opposite Parties that fish bone was served to him (complainant), in the dishes, ordered by him, his colleagues and friends. The mere fact, that one of the dishes, ordered by the complainant was RANN, which comprised boneless pieces of mutton, did not rule out the possibility of mixing Tandoori Pompret, fish dish with bone, with the same (RANN). The Opposite Parties, were, thus, certainly deficient, in rendering service, to the complainant.
12. No doubt, it was submitted by the Counsel for the appellants/Opposite Parties, that, as per the discharge summary Annexure C-1, it was not clearly established that fish bone was removed from the vallicula of the complainant, by the Doctors of the Fortis Hospital. However, this submission of the Counsel for the appellants/Opposite Parties, does not appear to be correct. Under the diagnosis, in Annexure C-1, discharge summary, it was in clear-cut terms, written as under:-
Foreign Body Ingestion (Fish Bone in Orophagus)-removed under G/A in MSOT
13. The Doctors, who conducted operation, upon the complainant, and removed fish bone one centimeter, from his Orophagus, and recorded this fact in Annexure C-1, could not be disbelieved. No doubt, under the heading Course in Hospital, against fish bone question mark (??) was made. That did not mean, that fish bone was not removed from the vallicula of the complainant. Removal of fish bone is evident, from the entire reading of the discharge summary Annexure C-1. The submission of the Counsel for the appellants/Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
14. The complainant spent an amount of Rs.77,040/-, on his hospitalization and treatment, in Fortis Hospital. He annexed bills alongwith Annexure C-1, at pages 33 to 36 of the District Forum file. Since, it was on account of the deficiency, in rendering service, on the part of the Opposite Parties, that the fish dish, with bone, was mixed in RANN, which was swallowed by the complainant, for which he had to undergo operation and spent Rs.77,040/-, the District Forum was right, in directing the reimbursement of this amount, to him (complainant).
15. The amount of Rs.50,000/-, was awarded as compensation, to the complainant, by the District Forum. No doubt, the compensation should be reasonable and adequate, keeping in view the facts and circumstances of the case. One can really imagine the condition of a person, who goes to the restaurant, for taking dinner, and was supplied the dish, mixed with a fish bone, which he swallowed, resulting into his hospitalization. Had the complainant been not hospitalized, immediately, the consequences would have been very serious. The Opposite Parties did not make arrangement, to take the complainant to Fortis Hospital. On the other hand, they were only concerned with the charging of amount of the bill. Since, a lot of mental agony and physical harassment was suffered by the complainant, in our considered opinion, the District Forum was right, in awarding compensation, to the tune of Rs.50,000/-. The compensation awarded by the District Forum, by no stretch of imagination, could be said to be, in any way, unreasonable, unfair and excessive.
16. No other point, was urged, by the Counsel for the appellants.
17. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
19. Certified copies of this order, be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion Pronounced.
January 10, 2014 [JUSTICE SHAM SUNDER (RETD.)] PRESIDENT (DEV RAJ) MEMBER Rg STATE COMMISSION (First Appeal No. 08 of 2014) Argued by: Ms. Anamika Mehra, Advocate for the applicants/appellants.
Dated the 10th day of January 2014 ORDER Alongwith the appeal, an application for condonation of delay of 31 days, in filing the same (appeal) has been moved, by the applicants/appellants, stating therein, that on receipt of certified copy of the order impugned, by their Gurgaon office, on 03.11.2013, it was decided to file an appeal, against the same. It was further stated that, when the appellants sent the complete paper book to their Counsel, at Chandigarh, it transpired that the affidavit, attached with the application for condonation of delay, had been incorrectly stamped, as a result whereof, fresh affidavit was got prepared and notarized, on 10.12.2013, and the same was again sent to the Counsel, which was received by her, on 13.12.2013. It was further stated that, thereafter, on 18.12.2013, when the appeal was being filed, in this Commission, it was pointed out by the Registry, that demand draft, in the sum of Rs.25,000/-was also required to be furnished, alongwith the appeal, whereafter, the same was got prepared, on 31.12.2013, and the same (appeal) was filed. It was further stated that, it was in these circumstances, the delay of 31 days, in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor willful. Accordingly, the prayer, referred to above, was made.
2. Arguments, on the application were heard.
3. No doubt, there is delay of 31 days, in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicants/appellants. Before discussing this question, let us have a look at law, laid down by the Hon`ble Supreme Court and the Delhi High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
4. In N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
5. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353.
6. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The stand taken up by the applicants/ appellants, in the application is that, on receipt of the certified copy of the order impugned, by their Gurgaon Office, on 03.11.2013, it was decided to file an appeal, whereafter, the complete paper book, relating to the same (appeal), was sent to their Counsel, at Chandigarh. On receipt of the same, it transpired that the affidavit, attached with the application for condonation of delay, had been incorrectly stamped, as a result whereof, fresh affidavit was got prepared, on 10.12.2013, and, the same was again sent to the Counsel, which was received by her, on 13.12.2013. Further, when the appeal was being filed, in this Commission, on 18.12.2013, it was pointed out by the Registry that demand draft, in the sum of Rs.25,000/-, was also required to be furnished alongwith the appeal, which was got prepared on 31.12.2013, and the same (appeal) was filed. It may be stated here, that the application for condonation of delay, is duly supported by the affidavit of Sh. Narinder Kumar, Advocate. Even otherwise, the delay in filing the appeal is not so huge, as to deny the substantial justice. It is settled principle of law, that normally every lis, should be decided, on merits. When the substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. The main object of the Consumer Fora is to dispense substantial justice and not to throttle the same, by making it a sacrificial goat, at the altar of hypertechnicalities. Some lapse, on the part of the litigant alone is not enough to turn down his plea and shut the door against him. The explanation, furnished for delay in filing the appeal, does not smack of malafidies. When the explanation furnished for delay is bonafide, the Consumer Fora is required to adopt liberal approach, to condone the same, so as to ensure that the lis is decided, on merits, than by resorting to hypertechnicalities. In the instant case, in our considered opinion, there was no intentional and deliberate delay, in filing the appeal, by the appellants. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.
7. For the reasons recorded above, the application for condonation of delay of 31 days, in filing the appeal, is allowed, and the delay is, accordingly, condoned.
8. Arguments, in the main appeal already heard.
9. Vide our detailed order of the even date, recorded separately, the appeal has been dismissed, at the preliminary stage, with no order as to costs.
10. Certified copies of this order, be sent to the parties, free of cost.
Sd/- Sd/-
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Rg