State Consumer Disputes Redressal Commission
Mrs.Rani Parwani vs Dr.Jatin P.Shah And Anr on 28 August, 2023
MA/21/294-N-CC/21/196
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. MA/21/294 A/W CC/21/196
Mrs.Rani Parwani,
R/a. Flat No.21-22, Brij Bala Building,
21st Road, Bandra West, ..........Applicant(s)/
Mumbai - 400 052. Complainant(s)
Versus
1.Dr.Jatin P. Shah, Gynaecologist,
2. Mumbai Fertility Clinic & IVF Center/
Kamala Polyclinic and Nursing Home,
Both having addresses at:
66-C, Motiwala Building, 1st Floor,
A.K.Marg, (West),
Opposite August Kranti Maidan,
Gowalia Tank, Grant Road, ............Respondent(s)/
Mumbai, Maharashtra - 400 026. Opponents(s)
BEFORE:
Justice S.P. Tavade - President
A.Z. Khwaja - Judicial Member
For the Applicant(s)/
Advocate Bhagyashree
Complainant(s):
Dhamapurkar
For the Respondent(s)
Advocate Rui A. Rodrigues
Opponent(s):
ORDER
(28/08/2023)
Per Hon'ble Mr.A.Z. Khwaja - Judicial Member:
(1) Complaint is today fixed for hearing on admission as well as for application for condonation of delay. Complainant has contended that the cause of action for filing the complaint arose on 22/08/2018 relating to medical negligence on the part of the opponent nos.1 and 1 MA/21/294-N-CC/21/196
2. It is submitted on behalf of the Complainant that the period of two years was prescribed as limitation and the same ended during the period of COVID-19 Pandemic and therefore, the State Commission has jurisdiction not only to condone the delay but also to admit the complaint and to proceed further.
(2) After filing application for condonation of delay due notice was issued to the opponents and the opponents appeared through Advocate. We have carefully gone through not only the application for condonation of delay but also the averments made in the complaint. If we go through the averments, more particularly, para 12 the complaint, the same shows that the Complainant had paid sum of Rs.3,00,000/- towards services in three installments by cheques to the opponent. But, if we go through the prayer clause of the complaint the complainant has not only claimed a sum of Rs.3,00,000/- but has further claimed a sum of Rs.1,50,00,000/- spent by the Complainant to diagnose and treat the injury.
(3) We have heard learned Advocate for the opponents and it is submitted by learned Advocate for the opponents that the Complainant has prayed for Rs.3,00,000/- and Rs.1,50,00,000/-. But, in fact, the complainant had only paid a sum of Rs.3,00,000/- which can be accounted for the services and therefore, the State Commission has no jurisdiction and in fact, it is the District Consumer Commission which will have jurisdiction to try the complaint as per the provisions of newly enacted Consumer Protection Act, 2019. In order to support this contention, the learned advocate for the opponents has relied on one judgment of the Hon'ble National Commission in the case of M/s.Pyaridevi Chabiraj Steels Pvt. Ltd. v/s. National Insurance Company Ltd. & 3 Ors., passed in Complaint No.833 of 2020 on 28 th 2 MA/21/294-N-CC/21/196 August, 2020, wherein the Hon'ble National Commission has properly explained and laid down law after the earlier judgment in the case of Ambrish Kumar Shukla & 21 Ors. V/s.Ferrous Infrastructure Pvt. Ltd., reported in 1(2017) CPJ 1 (NC).
(4) We have also heard learned Advocate for the Complainant and after proper hearing, the learned advocate for the Complainant has also filed application for withdrawal of the complaint with a liberty to file the complaint afresh before appropriate Commission. In view of this application, we do not find it necessary to go further into the aspect of jurisdiction and we feel that it would be proper to allow the complainant to withdraw the complaint with a liberty to file the complaint afresh before the appropriate Commission. It is also clarified that the time spent before the State Commission shall not be come in the way of proper filing of the complaint before the District Consumer Commission. Hence, the order:
ORDER
(i) Application for withdrawal of the complaint is hereby allowed.
(ii) Complaint is returned to the complainant with liberty to file the same before the appropriate Commission.
(iii) No order as to costs.
(iv) Copies of the order be furnished to the parties.
[Justice S.P. Tavade] President [A.Z. Khwaja] Judicial Member emp 3